I live in Los Angeles, CA. Two weeks ago I recieved notice that my wages are to be garnished due to a judgment awarded to a debt collector in April, 2007. According to the paperwork I received from my payroll department, this case was heard in Lancaster, CA. When I got divorced, we sold our home in Lancaster in October, 2003. I have not lived in Lancaster since then. The complaint for this case was filed in December 2006. Proof of service was filed in January 2007 stating that "Jane Doe, Female 29yrs Hispanic Brown Hair Brown Eyes 5' 03" 160 lbs MEMBER OF HOUSEHOLD" was served at the my former address in Lancaster which I had not lived in for 3 years. Infact, the couple who bought the house from me in 2003 were caucasion. What can I do to get this judgement set aside, or have this case quashed due to fraudulent proof of service?
Real Estate Attorney
You would have to file a Motion to Set Aside the Default. Section 473 of the Code of Civil Procedure. The motion would have to be heard in the Courthouse where the action was filed (Lancaster), so dedicate some time to appearing there, probably a half day. If you hire an attorney to do this work for you, best to hire someone local in Lancaster to save on paying for travel time.
You need to file a motion under section 473 of the Code of Civil Procedure to vacate this judgment on the basis of this fraud, which you just found out about. You may need a lawyer to do this.
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
I have good news and bad news.
The bad news is that it is too late to file a motion to vacate default under Code of Civil Proecdure Section 473, which permits such motions to be filed up to six months after the default is entered.
The good news is that a default entered without valid service is void, and can be set aside on motion at any time.
While a proof of service “presumptively establishes the fact of proper service”, it “may be impeached and a lack of proper service shown by contradictory evidence”. Judicial Council Comment to Code of Civ. Proc. §417.10 “It has long been established that a false affidavit of service constitutes extrinsic fraud”, and is therefore void. “City of Los Angeles v. Morgan (1951) 105 Cal. App. 2d 726, 731. “[I]f a plaintiff chooses to obtain a judgment that is void for want of service of summons upon a defendant, he and his privies may not complain that the law did not accord to them a right which has never existed.” Id.
I have recently filed a motion to set aside a default judgment that was entered in the Los Angeles County Superior Court more than 10 years ago.
As in your case, this motion is based on the failure of the plaintiff to properly effect service of the summons and complaint on the correct person.
If I can be of help on this matter, please feel free to contact me.
I would strongly urge you to consult immediately with a litigator skilled in this area of the law.
PLEASE NOTE THAT THIS RESPONSE SHOULD NOT BE CONSTRUED AS A LEGAL OPINION OR ADVISE, AND DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. IN ORDER TO RENDER A LEGAL OPINION OR ADVISE, THE RESPONDING ATTORNEY WOULD NEED FAR MORE INFORMATION THAN HAS BEEN PROVIDED, AND WOULD NEED TO BE RETAINED PURSUANT TO A WRITTEN FEE AGREEMENT.