A default was entered because I (Defendant) failed to respond to complaint by the 30 day deadline. I was a few days late and I didn't think it was a big deal. Now I received a letter stating that there is a DEFAULT PROVE UP HEARING scheduled in a few weeks. Can I make a motion to set aside the default or is the same issue addressed at the default prove up hearing? Please help!
Real Estate Attorney
You need to file a motion to set aside the default, ASAP.
See Code Civil Procedure 473 (b), link below.
Also, see Attorney Chen's Legal Guides here in this forum.
Richard A. Rodgers, Esq.
As stated in the AVVO.COM Terms and Conditions of Use, this answer is not intended as legal advice, and no attorney-client relationship or privilige is created by this response.
Think of a default prove up hearing as a trial without the defendant being allowed to be present or being allowed to present any evidence or being able to cross-examine any witnesses.
It is imperative that you either procure a stipulation to set aside the default or file a motion to set aside the default. It is faster and more likely successful if you had an attorney do this procedure.
If you do not set aside the default, you cannot address the court at the prove-up hearing.
The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.
You want to move to set aside the default so that a default judgment is not entered against you. In these cases, the sooner you file the motion, the more likely the judge will set aside the default provided you explain to the satisfaction of the judge why you did not answer within the statutory prescribed period.
Jason J.L. Yang, Esq. is admitted to practice law in California and therefore, all posts are based on California law. The posts do not constitute legal advice and does not create an attorney/client relationship.