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Motion to vacate a judgment/ C.C.P 473.5/ Bank levy/ Default judgment/ civil lawsuit

Sanger, CA |

I currently have a plaintiff that has been granted an entry to garnish my wages which I agree with the debt. I have a second plaintiff that levied my bank account today after I requested from them in writing to validate the account they are claiming I owe. A default judgment was entered against me on July 26, 2010 and the entry of judgment was done some thime in January of 2010 along with the complaint. Neither information was given to me, it was sent to my parents address where I have not lived at since 2004. Today I had to open a new checking account from preventing them to take my future payroll direct deposit. Under CCP 473.5 I meet all requirements but I am confused on the 180 day clause; I just found out January 26th, 2012 when I pulled my credit report. Can someone help me?

Attorney Answers 3

Posted

If you owe the debt it is only going to delay the inevitable. If you were served with the complaint then you only have 180 days to set aside the default. If you were never served then the 180 day rule does not apply. Talk to an attorney.

This is just my opinion and not a comprehensive answer. You assume the risk because this answer may not apply to your situation depending on the facts.

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Posted

CCP 473.5 is one type of motion. You may have another basis for a motion to vacate the judgment. You can base the motion on non-service and the court's lack of personal jurisdiction over you. You should at least talk with, and probably hire, an attorney to make this motion. After your papers are filed with the court, there may be an opportunity to negotiate. A negotiated settlement should include vacating the default judgment, so that it does not negatively affect your credit, and how the account is reported to the credit reporting agencies.

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1 comment

Asker

Posted

I was told if the entry of judgement was done prior to the default judgment, I would only have 180 days....is that true....CCP has two parts, I qualify under the 2 year clause but am confused on part 2 which states 180 days from entry of judgment. I have to go to my local Sheriff's deparment on Monday and request for an exception for my bank levy due to my financial hardship.....just looking to buy more time before hiring a local debt collection attorney...any suggestions?

Posted

Your post indicates that you likely were not personally served with a Summons and Complaint in either case. If this is true, then you can file motions to set aside the default judgments.

I recommend that you contact a consumer rights lawyer for help in getting the default judgments set aside.

You will need to obtain copies of a document known as a Proof of Service of Summons [one should have been filed for each case]. The process server who claimed to have personally served you signed a declaration under penalty of perjury stating the day, time, and location where they claim to have personally handed you the lawsuit papers. If the process server lied on the declaration [sadly, this is increasingly common in debt collection lawsuits these days], then you will need to re-trace your whereabouts for the date(s) you were allegedly served. If you can prove that you were not at the location on the date and time shown on the Proof of Service, then the Court should set aside the default and order the return of the levied money.

One other observation: if you have multiple judgments against you already, why not consult with a BK lawyer to see if a fresh start would be the best way to deal with your debt problems? The overwhelming majority of BK lawyers offer free consultations.

Please note that, while I am a lawyer, I am not your lawyer. This information is for general educational and informational purposes only, and is not legal advice. You should review your particular situation with a qualified lawyer of your choosing.

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3 comments

Asker

Posted

the process server claimed on the proof of service that they were given to my mother (name and physical description are stated). My mother is the only registered owner of her house, that is the only way I think they obtained her name because she is cetain that nobody went to her door and serve her or ever received anything by mail. I do not file bankruptcy because its only this judgment and its being reported for $4,200 plus interest and penalties.

Jason Scott Buckingham

Jason Scott Buckingham

Posted

What you describe is known as substituted service. Substituted service is allowed, but generally only at a defendant's actual home or work address. In your original post, you stated that you did not actually live at your mother's house at the time the summons and complaint were allegedly served. Also, if your mother is willing to state under oath that she never actually personally received papers ["personally received" can include leaving papers on the porch when a person answers but refuses to open a door], then you may be able to set aside the default. You mother will need to re-trace her whereabouts for the alleged date of service. Also, your mother should ask her neighbors if anyone went around the neighborhood asking for her description on or about the date of alleged service. Process servers have been known to use this tactic to cover up their sewer service.

Asker

Posted

Thank you. She already did and they said "no". My mother has no problem writing a letter and signing it under penalty and perjury to validate she never received anything. I just obtained the entry of judgment copy from the court today which was done on the same day as the default judgment (July 26,2010).

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