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Should I file a motion to Set Aside a Request for Entry of Default ... if the default has not been granted by the court yet?

Chula Vista, CA |
Filed under: Litigation

Hello, I'm a pro se defendant in a foreclosure suit in which the Bank is suing for Quiet Title. My first motion was for an Extension of Time to file my pre-answer motion to dismiss the case as I needed time to do the research and I work full time as well.

It took 2 months for a hearing date and while I was waiting, I was able to turn in my pre-answer motion to dismiss. However the Plaintiff put in a Request for Default seven days before I was able to file my pre-answer motion to dismiss into the court.

The motion for more time was denied (which I didn’t need now anyways), but I’m worried about the default since plaintiff did file before my pre-answer was filed. Should I oppose their request, or file a motion to set aside even though the court has not granted it to them?

Thanks!

SD Superior Court; Judge Yuri Hofmann; Thank you! As far as their request, it's not clear ... they did not fill out which option they are trying to get. They used CIV-100, but they didn't check an option in the heading, nor did they check option (d) or (e) under section 1, so I have no idea if they are requesting from the clerk or the judge. Also, there was no affidavit or amount filled out. I read case law that said those options are supposed to be declared or they don't satisfy - Because plaintiff did not comply with the notice requirements, the judgment is void and must be vacated. A complaint that merely prays for damages according to proof without specifying any amount cannot satisfy section 580. (Becker v. S.P.V. Construction Co., Inc) Also, I did make appearances by filing fee waivers, motions for time and this seems as proof that I was appearing to defend myself. Are any of these valid to use as an Answer and Obejctions to Plaintiff's Request for Entry of Default Judgment?

Attorney Answers 2


  1. Ask Plaintiff to stipulate to setting aside the default and allowing your motion to dismiss to be heard. If they will you can submit the stipulation to the judge and get a hearing date. If they will not you will have to move to set aside the default after it is entered.

    The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.


  2. A clerk's entry of default and a default judgment are separate and distinct procedures. From your question it is not clear which one of the two "...has not been granted..." yet. If it was the clerk's entry of default, you could probably file a motion to set aside the entry of default. However, before filing your motion, you should probably contact the bank's attorney and attempt to resolve the matter by stipulation. You should keep in mind that you will bear the burden of proving that you are entitled to relief from entry of default, and that you will have to present competent evidence.

    Disclaimer: Please note that this response is not intended to and does not create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. To the extent additional or different facts exist, the response might possibly change. Responses are based solely on California law unless stated otherwise.

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