Help please ! Default Judgement(never served) Need An Answer..

[delighted4]

My friend resides in California and was served garnishment papers at her job. She never received a summons and the last address that was included in the papers was atleast 5-6 years old. Apparently this CA put the summons in the newspaper in a county that my friend does not reside in. My friend went to the court and ordered all records connected with this case and I am trying to assist her.

From what I see , here are the findings:

The OC sold the acct to the CA in 2005. Furthermore, it is written that the plaintiff's cannot provide the original application signed by the defendant(believed to be lost or destroyed). Also it is mentioned that the original cardmember agreement was sent to the defendant and is no longer available. It mentions that the OC has a part of the agreement.

Complaint filed 2006 and the defendant served 2007(she was not served). The acct was charged off in 2003(doesn't that make the account SOL?)

They attached the following:

proof of publication in 2007 (newspaper in a county that she does not reside in)

a couple of pages of the OC acct agreement(no signature and date from my friend)

2 invoices

a bill of sale from OC to CA signed in 2005

My friend has financial issues, so we filed a a claim of exemption (WG-006) and Financial Statement(WG-007) so far.

We want to file a motion to vacate the judgement ...Can I get assistance....

[debtorshusband]

I just responded to an older post of yours, and it looks like my advice there is obsolete; you seem to have gotten the paperwork for the case.

So your friend definitely wants to file a Motion to Vacate the judgment, on the grounds that your friend was never properly served. You may need to provide proof of where she was living at the time, to show that their attempts to serve her were at the wrong address, and the publication was in the wrong county.

Now, if the Motion to Vacate the judgment is granted, that just sets aside the judgment. The case will then proceed as if she had just been served. She will file an Answer, in which she disputes the plaintiff's claims and asserts her Affirmative Defenses, and the case will proceed from there.

An expired Statue of Limitations is a slam-dunk win, but know this: If they filed the suit in 2006 before the SOL expired, they are in the clear. So to mount your defense you will need to find out exactly when they filed the case, and figure out when the SOL began to run. This is when your friend first defaulted on the account.

Even if they filed within the SOL, she may have other defenses, and the plaintiff will have to produce documentation to prove their case.

But let's leave all that for now. File the Motion to Vacate first.

California provides many forms for litigants to use. Here is a link to one which I think you want:

http://www.courtinfo.ca.gov/forms/documents/sc135.pdf

(PS. Sorry, just realized that's a form for Small Claims court. You will probably need to type up a motion in pleading paper format. The best advice I can offer at this point is to go to a library or bookstore and get a book called Win Your Lawsuit by Judge Roderic Duncan. It is published by Nolo Press; you can probably order it from their website as well. It has examples of many types of filings.)

Good luck.

DH

Edited December 5, 2009 by debtorshusband
mea culpa

[delighted4]

Thanks for your comments DH. I had some computer issues with this web site and I was unable to respond. It is fixed now. I have copies of my friend's paperwork. Here are some findings:

Superior Court in California

The OC charged off in 2003

CA purchased acct from OC in 2005

Complaint filed in 2006

Judgement entered in 2007

If the OC charged off in 2003, isn't the acct now SOL?

From your response, it appears that if the complaint was filed in 2006(in which it was), then it is within the SOL. However, she was not served and had no knowledge of this lawsuit. She became aware of this in November 2009. That is when she received garnishment paperwork from the job. With this in mind, what grounds should I file this motion to vacate? If I cannot do it because the CA filed the complaint within the SOL, then can I file a motion to vacate because she was not served with a summon's and complaint? If that is granted, then when she is served, can she answer SOL as her defense? I need a road map.

I am going to purchase the book you recommended now. Any advice appreciated. I am new at this and I need all the help I can get. I thought it would be an easy fix, but now I see it is not. I saw some templates and I printed out a lot of information from this web site. I will attempt to fit all of the puzzle pieces together this weekend Any help will be most gratefully appreciated.