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Notice of motion to vacate default judgment

Sanger, CA |

I am preparing my own motion. I need assistance on completing the black spaces below:

NOTICE OF MOTION TO VACATE DEFAULT JUDGMENT

To plaintiff Midland Funding LLC and to his/her attorney of record:
NOTICE IS HEREBY GIVEN that, on May 25, 2012, at 3:00 P.M, or as soon after that as the matter can be heard, in Dept. _______of the above-entitled Court located at 619 N Street, Sanger, CA 93657, defendant will, and hereby does, move to vacate and set aside default judgment entered against defendant on July 26, 2010. The Motion will be made under the provisions of Code of Civil Procedure Section 473.5 on the ground that the Default and Default Judgment were taken as a result of Defendant's lack of actual notice in time to defend the action as more fully set forth in the Declaration

of John Doe (me) and Jand Doe (my mother)

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Attorney answers 2

Best Answer
Posted

I agree with Mr. Chen. In regard to the last part of the notice you posted, you should specify whose declaration. Instead of "Declaration," you should state "Declaration of John Smith attached to the motion."

This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.

Paul Y. Lee

Paul Y. Lee

Posted

See the following for guidance: http://www.sdcll.org/resources/guides/Motion_to_Vacate_a_Default_Judgment.pdf Keep in mind this is drafted by San Diego County Public Law Library, not Fresno County.

Asker

Posted

If I include 2 declarations, how do I refer to them while writing my motion? One declaration is from myself explaining why I am filing the motion due do never being in receipt of the summons or anything of that matter and the second declaration is from my mom, who is said on the proof of service that was served for me....her address is listed and not mine. I have not lived at my parents address since 2004. She is writing a declaration because she does not remember ever receiving a summons by anyone or receiving it in the mail....

Paul Y. Lee

Paul Y. Lee

Posted

Just refer in your notice to declarations of John Smith and Jane Jones in support of motion. In the body of the motion (memorandum of points and authorities), make a point and then refer to the supporitng authority. For example, you may state that "Neither the defendant nor his mother ever recalls receiving a summons. (Declaration of John Smith; declaration of Jane Jones.)." If only one declaration supports a point, just list that declaration.

Asker

Posted

But I was told to complete 2 declarations so that my story and my mother's are the same in regards to never being served the summons, complaint, proof of service, etc. I contacted the representing attorney a few days ago and see how much they would settle the post judgment for (without being in agreement with the debt) and I was told I would get a call back. I want to continue and get the judgment vacated, but I am a bit hesitant since my ammount is not $6,500 with the current interest and penalties.....I do not want to lose and have to pay additional fees (my attorney fees + theirs)....any words of wisdom? All the attorneys on this forum have been incredible, but the cost of their service would be nearly the amount of the judgment and with the probabilty of now having a positive outcome...I have reached out to a few civil paralegals in my city to assist me in fine tuning my paperwork.

Posted

There is only one blank space.

You can call the court clerk and provide the case number in order to ascertain the department in which the motion will be heard.

Frank W. Chen has been licensed to practice law in California since 1988. 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.

Asker

Posted

I just did. They said to fill in: Sanger Courthouse, Department 1. Where can I find a good website to make any corrections on my motion to vacate the judgment, memorandum of points & authorities, declaration, proff of service ? (want to make sure I have the correct format). If the complaint is not verified on my civil lawsuit (limited) under penalty and perjury, can I just complete Form PLD-C-010 if I have a general denial of all items on the plaintiff's complaint as an Answer?

Asker

Posted

Im am filing the motion based on C.C.P 473.5 (was never served with the original summons). Civil limited lawsuit filed entry and default judment on July 26, 2010....I know I have a 2 year window to file the motion.

Asker

Posted

Correction: Form PLD-050-General Denial "not" Form PLD-C-010-Answer as mentioned above.