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halohonk

Default Judgment in CA - never served

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I was sued by Cap1 in 2010 and was never served. I only found out about this recently when I was sued in another case and saw this case listed under my name when I searched court records.

 

Should I file a motion to vacate default, a motion to quash service or both?

 

This is the Record of Actions from the court website:

 

Thank you!

 

 

17 PAYMENT RECEIVED BY FOR 141 - WRIT IN THE AMOUNT OF 25.00, TRANSACTION NUMBER 11142391 AND RECEIPT NUMBER 10966283. 05/10/2012 1 pages

16 WRIT ISSUED. 05/10/2012 NV  

15 MEMORANDUM OF COSTS AFTER JUDGMENT; ACKNOWLEDGMENT OF CREDIT AND DECLARATION OF ACCRUED INTEREST - LESS THAN $100 FILED BY CAPITAL ONE BANK USA, N.A. ON 04/25/2012 04/25/2012 2 pages

14 CASE DISPOSED WITH DISPOSITION OF DEFAULT JUDGMENT BY CLERK 01/21/2011 NV  

13 COMPLAINT DISPOSED WITH DISPOSITION OF DEFAULT JUDGMENT BY CLERK. 01/21/2011 NV  

12 THE COURT ENTERS JUDGMENT ON THE COMPLAINT FOR CAPITAL ONE BANK USA, N.A. IN THE AMOUNT OF 3286.82 PRINCIPAL, 267.50 COSTS AND 0.00 ATTORNEY FEES AGAINST (me) 01/22/2011 NV  

11 JUDGMENT FILED BY CAPITAL ONE BANK USA, N.A. ON 01/21/2011 01/21/2011 2 pages

10 DECLARATION - OTHER FILED BY CAPITAL ONE BANK USA, N.A. ON 01/20/2011 01/20/2011 13 pages

9 WAIVER FILED BY CAPITAL ONE BANK USA, N.A. ON 01/20/2011 01/20/2011 1 pages

8 REQUEST FOR ENTRY OF DEFAULT FILED BY CAPITAL ONE BANK USA, N.A. ON 01/20/2011 01/20/2011 4 pages

7 REQUEST FOR DISMISSAL FILED BY CAPITAL ONE BANK USA, N.A. ON 01/20/2011 01/20/2011 2 pages

6 PROOF OF SERVICE OF STATEMENT OF VENUE - SUBSTITUTE FILED BY CAPITAL ONE BANK USA, N.A. ON 08/18/2010 08/18/2010 3 pages

5 DECLARATION - OTHER (VENUE) FILED BY CAPITAL ONE BANK USA, N.A. ON 07/19/2010 07/19/2010 2 pages

4 PAYMENT RECEIVED BY FOR 137 - COMPLAINT OR OTHER 1ST PAPER <=$10K IN THE AMOUNT OF 205.00, TRANSACTION NUMBER AND RECEIPT NUMBER 10509180. 07/19/2010 1 pages

3 CIVIL CASE COVER SHEET FILED BY CAPITAL ONE BANK USA, N.A. ON 07/19/2010 07/19/2010 1 pages

2 SUMMONS ISSUED AND FILED FILED BY CAPITAL ONE BANK USA, N.A. ON 07/19/2010 07/19/2010 1 pages

1 COMPLAINT FILED BY CAPITAL ONE BANK USA, N.A. ON 07/19/2010

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tylenol for your case

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( 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. 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( 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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Thank you racecar. What should I put in the Statement of Facts? Just that I wasn't served, or should I put my defenses to the case there?

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