To Whom It May Concern:
I received notice of a judgment by clerk for a case I did not even know existed.
So I went to the courthouse and found out that the plaintiff filed a claim against me last fall and claimed to have served someone in my household bearing the same name as I (wrong spelling but phonetically similar enough). I know that I was not served and on the proof of service the supposed recipient of the complaint and summons is described as a female while I am a male (bolding so there is no doubt). No-one bearing my last name lives with me.
I wish to reverse this judgment.
What are the chances that a motion to set aside will be successful?
What will the next part of the procedure be?
What would you advice I do ?
You can file a motion to set aside the judgment for lack of personal service. I strongly suggest that you have an attorney who does debt defense handle this for you, since this (like most filings) is complex and easy to do wrong.
Mr. Ridley practices consumer and debt law throughout the state of CA, with offices in Ventura and Los Angeles Counties. He is also licensed to handle bankruptcy matters throughout the California Central District: Los Angeles, Ventura and Santa Barbara Counties. His phone number is (805) 244-5291, and his email address is [email protected] . His website for more estate, bankruptcy and business information is www.ridleylawoffices.com .
Eric Ridley can be reached at (805) 244-529, by email at [email protected], or at http://www.ridleylawoffices.com This answer is intended to provide general information only. It does not create an Attorney-Client relationship, nor should it be construed as legal advice or an opinion on specific situations. Eric D. Ridley is licensed to practice law in California. The Law Offices of Eric Ridley emphasizes Estate Planning, Bankruptcy and Consumer Law & Litigation.
If the reason you are seeking to set aside the default and vacate default judgment is because you were never served with the summons, then the basis for your motion is Code of Civil Procedure section 473.5, not section 473(b).
In California, a defendant who has been defaulted by failure to respond to a summons and complaint might have an opportunity to set aside the default based upon Code of Civil Procedure § 473.5.
“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.” (California Code of Civil Procedure § 473.5(a). )
The motion must be served within the earlier of two years after entry of a default judgment against him or her; or 180 days after service on him or her of a written notice that the default or default judgment has been entered.
The moving party should submit a sworn declaration as to when he or she first learned of this action, whether he or she was ever served with the summons or complaint in the action, and whether he or she ever received notice of entry of default.
“A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (California Code of Civil Procedure § 473.5(b).)
If you have good facts, and if the default judgment is fairly recent, the chances of getting the default judgment vacated is pretty high.
My advice is to hire an attorney to prepare the motion to set aside default and vacate default judgment. Your attorney might be able to get the plaintiff's attorney to stipulate to setting aside the default, obviating the necessity for making a motion to the court.
Frank W. Chen is licensed to practice law in the State of California. 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. For specific advice about your particular situation, consult your own attorney.
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