Can I void a judgement ?

[DNICE]

I have a default judgement from 2009 and I have been reviewing my case. I was sued for breach of contract, however the JDB could never produce a signed contract and just entered a credit card agreement. The credit card agreement is from 2006 when the account was supposedly opened in 2004. My question is can I void the judgement based on this ? I mean how can I be bound to the wrong agreement 2 years after the account was supposed to be opened ?

[Massive]

I have a default judgement from 2009 and I have been reviewing my case. I was sued for breach of contract, however the JDB could never produce a signed contract and just entered a credit card agreement. The credit card agreement is from 2006 when the account was supposedly opened in 2004. My question is can I void the judgement based on this ? I mean how can I be bound to the wrong agreement 2 years after the account was supposed to be opened ?

You can't. File a motion to vacate for lack of subject matter jurisdiction, no competent fact witness, no evidence that the junk debt buyer even owned the account, NO CASE!!

[Guest usctrojanalum]

Were you served the lawsuit? If not, that would be the easiest way to get it vacated. If you were it becomes much harder.

[DNICE]

I was served, however I was planning to file a motion under CCP 473. Im in California by the way. The judgement was entered in 07/09 so I am just over a year into this. So if I were to file a motion to vacate based on lack of jurisdiction, where would I find this in CCP ? How would I go about proving the lack of jurisdiction ? Also my credit report says that the account was sold to another JDB, But the plaintiff has an affidavit of sale stating the the OC sold it directly to the plaintiff so either way the OC is says one thing on my credit and another in the case. Also the plaintiff started the case with one address and now has a different address. When I google the address listed in the case its to a JDB I have never heard of. I thought the plaintiff had to notify the court of an address change? Please excuse grammatical errors.

Edited August 24, 2010 by DNICE

[DNICE]

Also I spoke with an attorney today who said I would have a better chance suing the JDB in small claims court so their attorney coulld not be present ? He said I should ask them to vacate their judgement and I will drop my claim ?

[DNICE]

Would I use civil code 1624(a) for the lack of subject matter jurisdiction ?

The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent:

(a) An agreement that by its terms is not to be performed within a year from the making thereof.

Also I was sued for breach of contract and the elements for breach of contract are

(1) the existence and terms of the contract itself;

(Wrong Year)

(2) plaintiff's performance of the contract or excuse for nonperformance;

(never had a contract with JDB)

(3) defendants' breach; and

(I can not breach a contract that never existed)

(4) the resulting damage to the plaintiff.

(Plaintiff did not receive damage because credit was never given)

Edited August 27, 2010 by DNICE

[DNICE]

?

[Massive]

Would I use civil code 1624(a) for the lack of subject matter jurisdiction ?

The following contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent:

(a) An agreement that by its terms is not to be performed within a year from the making thereof.

Also I was sued for breach of contract and the elements for breach of contract are

(1) the existence and terms of the contract itself;

(Wrong Year)

(2) plaintiff's performance of the contract or excuse for nonperformance;

(never had a contract with JDB)

(3) defendants' breach; and

(I can not breach a contract that never existed)

(4) the resulting damage to the plaintiff.

(Plaintiff did not receive damage because credit was never given)

Yes cite that and also the fact that there is no proof of ownership by junk debt buyer. Motion to vacate for lack of subject matter jurisdiction. Sufficiency of pleadings allows the court subject matter jurisdiction, but as you can see the court never had subject matter jurisdiction due to there being no competent fact evidence File your motion and include an Order for the judge to sign and then set the motion for hearing. There are default judgments all across the country that are voidable due to lack of subject matter jurisdiction as in your case. A generic cardmember agreement with a wrong copyright date is NOT evidence in a court of law regardless of what anyone else tells you. Also be advised that attorneys mumbo jumbo out of their mouth is hearsay as they are not first person witnesses.

[frustratedguyhere01]

Hey, I'm almost in the same boat as you and would like to discuss with you on the methods of approaching the matter. I too was served back in 2009 and got a default judgment. I want to fight it as this is a JDB and probably has lack of documents to support the case. Are you going to proceed w/ filing a motion under CCP 473 using civil code 1624(a) as your reasoning? How are you going to get around the issue:

"To vacate the default judgment, you must file a motion NO LATER THAN 30 DAYS from the date the court clerk mailed you the Notice of Entry of Judgment.

If you were NOT PROPERLY SERVED with plaintiff's claim, you have 180 DAYS from the date you DISCOVERED the judgment to file a motion to vacate."

Granted it does mention somewhere that you have up to 2 yrs, but the issue mentioned above might be of concern.

[frustratedguyhere01]

also how did you get the evidence that was submitted in court? thanks