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Riverwalk Holdings, LTD / Nelson & Kennard


SacConsumer
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Some of these JDB's just shoot themselves in the foot.

 

My history:

 

*  Had a default judgment issued for Riverwalk Holdings using attorney firm Nelson & Kennard for roughly $9k.

--  I was never served, I was not even in the state at the time of "service" (was in Texas when filed).

--  I do not believe I owe this debt and should file to have the judgment vacated (both on the sewer service and the fact I believe this debt was settled two years earlier).

 

*  I have no assets in my name.

 

*  I found out about this settlement after another judgement had my wages attached.

 

*  I had a friend who helps people with short-sales contact Nelson & Kennard to reach a settlement.

 

*  I had my friend offer them $4k.  They countered an amount so high that it almost became pointless to continue.  I contacted my source of funds and countered about $5k.  The counter was HIGHER than their offer before wanting the $5k now and more later.

 

*  I am now considering filing chapter 7 bankruptcy.  However, before I do, I wanted to see if anyone had any success vacating a judgement that is this old?  I feel confident I can win the case, I have a receipt of payment and a settlement letter from a prior CA for this debt.  And, I can prove I was not in the state during the entire month the "service" was completed (plane tickets and hotel bills paid by my employer but with my name on them).  

 

Thanks for your help,

Sacto Consumer

 

Edited to remove personalized data on a tip that attorneys in question may have access to this board (file that under duh for me :( ).

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Never know unless you try

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,

 

I'm going to file this pro se while I continue to work with an attorney considering chapter 7.  Do you think the Sacramento Superior Court Clerk's office will help me with the formatting / paperwork?

 

It appears I have several options each with up and downsides.  As I see them:

 

1)  Vacate/Set aside Judgment and win case

 

---- Downside, decision out of my hands; I have to rely on the court understanding and approving the facts.

---- Upside, I'm confident if the court does that I will win and can countersue for my legal costs (I'll use an attorney here if vacated)

 

2)  Settle for 55-60% of Judgment amount.

 

---- Downside, costly; still more than I EVER borrowed from the original creditor.  Decision out of my hands.

---- Upside, I'm done with it, get to stay in California and keep the Chapter 7 in my pocket in case things go badly one day.

 

3)  File chapter 7 Bankruptcy.

 

---- Downside, cannot use this in the future if needed; I've spent money settling other debts already and it would "feel" wasted.

---- Upside, I'm done with it, get to stay in California, credit scores go up and it's relatively inexpensive (about $3k less than my settlement offer).

 

4)  Relocate to TX (an option my employer offers)

 

---- Downside, moving further from family.

---- Upside, I become "Judgment proof"

 

Cheers!

Sacto Consumer

 

edited to remove some personal info

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Call came in accepting my offer above, I want to close the matter and have access to the funds.

 

My short questions now:

What should I ensure is included in their settlement letter?

Any suggested methods of payment?

 

Thank you racecar and others for any insight on how this should be done.

 

Sacto Consumer

 

edited to remove personal info

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My mother got a cashier's check and it is being dropped off by my friend today.

 

I'll post here if anything negative becomes of this; I'm expecting a 1099-C but I can prove Insovency on IRS form 982 so that is fine.

 

And, the great news is I'll never EVER not fight any action against me - at minimum I'll make them prove the debt and request arbitration.  And, when appropriate, I will file countersuits / file for my attorney fees back.

 

Good learning lesson, cost me some of my inheritance early, but there are worse things in life.

 

Cheers!

 

Sacto Consumer

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A little off topic, but relevant to the JDB here: 

 

I was doing some research Today and ran across a case where Riverwalk's attorney's asked to be removed from a case. They had refused to pay the attorneys representing them. The amount was over 7k and Riverwalk's CEO sent a letter stating he refused to pay. The judge released the attorneys. Its amazing what kind of people we are dealing with here. 

 

Congrats on getting things resolved! I hope everything works out for you.

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The Clerk's office in sacramento will not help with anything even close to that.  They're now refusing to even give procedural information (even when you point to the sign on the wall saying that they can't give legal advice but do have to provide procedural information with a smile).

 

Across the street and down a block is the law library, the librarians there kick a$$ and will walk you right to the book that tells you what you want to know.

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The Clerk's office in sacramento will not help with anything even close to that.  They're now refusing to even give procedural information (even when you point to the sign on the wall saying that they can't give legal advice but do have to provide procedural information with a smile).

 

Across the street and down a block is the law library, the librarians there kick a$$ and will walk you right to the book that tells you what you want to know.

 

Yikes, that's pretty lame.  A nice letter to your local congressman is always appropriate at times like that (I've written a few and gotten callbacks quickly - e.g. a delay in getting my medical leave payments).  The good news is it appears I won't need to utilize them this go around, thanks for the tip on the law library - always appreciated!

 

SC

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  • 3 months later...

The Clerk's office in sacramento will not help with anything even close to that.  They're now refusing to even give procedural information (even when you point to the sign on the wall saying that they can't give legal advice but do have to provide procedural information with a smile).

 

Across the street and down a block is the law library, the librarians there kick a$$ and will walk you right to the book that tells you what you want to know.

In the Law libraries the librarians do in fact rock, In my local law library the librarian not only walked me to the book, but walked me to a lot of others as well. A sad note is they are decreasing funding for the libraries to keep more snotty clerks, so I would have to say push for more law libraries or maybe even open your own private one with dues even kind of a legal elks lodge. Just saying if we want more pro se action we have to make the legal knowledge accessible to everyday Joes and Janes. 5000 fitness clubs in my county but not one pro per accessible law library that you can go to after 2:30 PM

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  • 2 weeks later...

Hmm

 

In the Law libraries the librarians do in fact rock, In my local law library the librarian not only walked me to the book, but walked me to a lot of others as well. A sad note is they are decreasing funding for the libraries to keep more snotty clerks, so I would have to say push for more law libraries or maybe even open your own private one with dues even kind of a legal elks lodge. Just saying if we want more pro se action we have to make the legal knowledge accessible to everyday Joes and Janes. 5000 fitness clubs in my county but not one pro per accessible law library that you can go to after 2:30 PM

 

Hmm. 

 

Now there's an interesting idea......

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