BlondaVenus

Garnishment without being served by CA

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My wages were garnished by a creditor, but I never have been received Summons and I have never been served. The paperwork stated that they served someone at the property that I own (but don't reside at), and the description didn't match the current resident at that time they said that was served. It's been a year since they finished garnishing my wages. Is there a SOL to file a motion to vacate the garnishment? Any advice? I reside in California. Thanks so much!

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IN THE YOUR COUNTY SUPERIOR COURT

STATE OF CALIFORNIA

______________________________,

Plaintiff,

vs.

______________________________,

Defendant.

Case No.: ________________

NOTICE OF MOTION AND MOTION FOR ORDER VACATING AND SETTING ASIDE DEFAULT (AND DEFAULT JUDGMENT)], SUPPORTING DECLARATION, AND MEMORANDUM OF POINTS AND AUTHORITIES AND ORDER

Date:__________________

Time:__________________

Dept:__________________

NOTICE OF MOTION TO VACATE DEFAULT JUDGMENT

To plaintiff ______________________ [name of plaintiff] and to his/her attorney of record.

NOTICE IS HEREBY GIVEN that, a motion will be heard on the following date , time and place:______________________________________. (Date and time of motion).

The motion will be heard in the following courthouse and division/department: _____________________________________________________________, located at ___________________________ [address], ___________________ [city].

Defendant will, and hereby does, move to vacate and set aside default judgment entered against defendant on _______________________________ [date default judgment was entered].

The motion will be made on the ground(s) that the default judgment was taken against defendant through his/her mistake or inadvertence or surprise or excusable neglect or all or any combination of these]. ____________________________.

*

The motion will be based on this notice of motion, the accompanying declaration(s) of the defendant, and the memorandum of points and authorities served and filed herewith, on the records and file herein, and on such evidence as may be presented at the hearing of the motion.

Dated:___________________. Respectfully Submitted,

By:___________________________

DECLARATION IN SUPPORT OF MOTION TO VACATE DEFAULT JUDGMENT

I, _________________________, declare: I am the defendant in the above-entitled case.

(Enter your Statement of Facts Related to the case)

I declare under penalty of perjury that the foregoing is true and correct.

Executed on_________________, at________________________________, California.

Dated:___________ Respectfully Submitted,

By:___________________________

Defendant in Pro Per

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO

VACATE DEFAULT JUDGMENT

THE COURT SHOULD GRANT THE MOTION TO SET ASIDE THE DEFAULT AND DEFAULT JUDGMENT UNDER CODE OF CIVIL PROCEDURE SECTION 473(B) BECAUSE THE DEFAULT JUDGMENT WAS TAKEN AGAINST DEFENDANT THROUGH HIS/HER MISTAKE and/or INADVERTENCE and/or SURPRISE and/or EXCUSABLE NEGLECT, AND JUSTICE REQUIRES DETERMINATION OF THE ISSUES AFTER A HEARING ON THE MERITS OF THE CASE.

A. Grounds for Relief From Judgment, Order, or Other Proceeding. On application, the court may, on any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect (Code Civ. Proc. § 473(B)).

B. Policy of Law Favors Trial on Merits. The policy of the law is that controversies should be heard and disposed of on their merits ( Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 694-703, 84 Cal. Rptr. 3d 351 ; Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909, 95 Cal. Rptr. 417 ).

C. Court Has Wide Discretion in Granting Relief. A trial court has wide discretion to grant relief under Code of Civil Procedure Section 473 ( Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909, 95 Cal. Rptr. 417 ).

D. Liberal Construction of Statute. Code of Civil Procedure Section 473(B) is a remedial measure to be liberally construed, and any doubts existing as to the propriety of setting aside a default thereunder will be resolved in favor of a hearing on the merits ( Berman v. Klassman (1971) 17 Cal. App. 3d 900, 910, 95 Cal. Rptr. 417 ).

Dated:___________________. Respectfully Submitted,

By:___________________________

Defendant in Pro Per

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Thanks a lot! Really appreciate it! Is there a SOL? They garneshed my wages last year. Do you think I might have the right to file it one year later??

IN THE YOUR COUNTY SUPERIOR COURT

STATE OF CALIFORNIA

______________________________,

Plaintiff,

vs.

______________________________,

Defendant.

Case No.: ________________

NOTICE OF MOTION AND MOTION FOR ORDER VACATING AND SETTING ASIDE DEFAULT (AND DEFAULT JUDGMENT)], SUPPORTING DECLARATION, AND MEMORANDUM OF POINTS AND AUTHORITIES AND ORDER

Date:__________________

Time:__________________

Dept:__________________

NOTICE OF MOTION TO VACATE DEFAULT JUDGMENT

To plaintiff ______________________ [name of plaintiff] and to his/her attorney of record.

NOTICE IS HEREBY GIVEN that, a motion will be heard on the following date , time and place:______________________________________. (Date and time of motion).

The motion will be heard in the following courthouse and division/department: _____________________________________________________________, located at ___________________________ [address], ___________________ [city].

Defendant will, and hereby does, move to vacate and set aside default judgment entered against defendant on _______________________________ [date default judgment was entered].

The motion will be made on the ground(s) that the default judgment was taken against defendant through his/her mistake or inadvertence or surprise or excusable neglect or all or any combination of these]. ____________________________.

*

The motion will be based on this notice of motion, the accompanying declaration(s) of the defendant, and the memorandum of points and authorities served and filed herewith, on the records and file herein, and on such evidence as may be presented at the hearing of the motion.

Dated:___________________. Respectfully Submitted,

By:___________________________

DECLARATION IN SUPPORT OF MOTION TO VACATE DEFAULT JUDGMENT

I, _________________________, declare: I am the defendant in the above-entitled case.

(Enter your Statement of Facts Related to the case)

I declare under penalty of perjury that the foregoing is true and correct.

Executed on_________________, at________________________________, California.

Dated:___________ Respectfully Submitted,

By:___________________________

Defendant in Pro Per

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO

VACATE DEFAULT JUDGMENT

THE COURT SHOULD GRANT THE MOTION TO SET ASIDE THE DEFAULT AND DEFAULT JUDGMENT UNDER CODE OF CIVIL PROCEDURE SECTION 473(B) BECAUSE THE DEFAULT JUDGMENT WAS TAKEN AGAINST DEFENDANT THROUGH HIS/HER MISTAKE and/or INADVERTENCE and/or SURPRISE and/or EXCUSABLE NEGLECT, AND JUSTICE REQUIRES DETERMINATION OF THE ISSUES AFTER A HEARING ON THE MERITS OF THE CASE.

A. Grounds for Relief From Judgment, Order, or Other Proceeding. On application, the court may, on any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect (Code Civ. Proc. § 473(B)).

B. Policy of Law Favors Trial on Merits. The policy of the law is that controversies should be heard and disposed of on their merits ( Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 694-703, 84 Cal. Rptr. 3d 351 ; Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909, 95 Cal. Rptr. 417 ).

C. Court Has Wide Discretion in Granting Relief. A trial court has wide discretion to grant relief under Code of Civil Procedure Section 473 ( Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909, 95 Cal. Rptr. 417 ).

D. Liberal Construction of Statute. Code of Civil Procedure Section 473(B) is a remedial measure to be liberally construed, and any doubts existing as to the propriety of setting aside a default thereunder will be resolved in favor of a hearing on the merits ( Berman v. Klassman (1971) 17 Cal. App. 3d 900, 910, 95 Cal. Rptr. 417 ).

Dated:___________________. Respectfully Submitted,

By:___________________________

Defendant in Pro Per

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