Critique Motion to Vacate, Set Aside Default Judgment; plus questions

[BigDaddyBry]

Quick note

After handling suits in my county of residence, I searched court records in neighboring counties and counties where I resided, to see if there could be any out there I was not aware of.  I received one hit, for my wife, in a county neither of us ever resided, on a suit we never received.  I paid to download the Proof of Service of Summons.  

 

Since I am helping create the Motion for my wife, excuse my use of "I" when at times it could be "her" when referring to the suit/debt/documents/etc.

 

My questions

1. Do I need to file a General Denial despite the fact I am not a resident of the county where default judgment was granted?

2. Can I sue for FDCPA violations surrounding the default judgment via filing in the wrong county and fraudulent service?  If so, is this to occur when they refile in the correct county, after the Motion is heard (in the incorrect county), or filed with the Motion (in the incorrect county)?

3. Please critique Motion docs. (in subsequent posts)

 

Thank you in advance for your help.

 

Answers to New Topic Questions

 

1. Who is the named plaintiff in the suit? 
Wife
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Patenaude & Felix, APC via the Proof of Service
3. How much are you being sued for?
Don't know
4. Who is the original creditor? (if not the Plaintiff)
Target National Bank
5. How do you know you are being sued? (You were served, right?)
Court records search
6. How were you served? (Mail, In person, Notice on door)
NOT SERVED
7. Was the service legal as required by your state? 
NO
8. What was your correspondence (if any) with the people suing you before you think you were being sued?
NONE
9. What state and county do you live in?
CA, KERN
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
Possibly 2009
11. What is the SOL on the debt? 
4 years
12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or   looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
Creating a Motion to Vacate, Set Aside Default Judgment
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
No
14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.
No
15. How long do you have to respond to the suit?
No summons or complaint received.
16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

No summons or complaint received.

[BigDaddyBry]

NOTICE OF MOTION AND MOTION FOR ORDER SETTING ASIDE AND VACATING DEFAULT [AND DEFAULT JUDGMENT] AND GRANTING DEFENDANT LEAVE TO DEFEND, AND SUPPORINTG DECLARATION

                                     

 

NOTICE OF MOTION TO SET ASIDE DEFAULT JUDGMENT WHEN SERVICE DID

NOT RESULT IN ACTUAL NOTICE TO DEFENDANT

To plaintiff, TARGET NATIONAL BANK and or to his/her attorney of record:

NOTICE IS HEREBY GIVEN that on the following date and time:_______________________.

In the Department or Division ____________________ of this court, located at the following

address ____________________, defendant will, and hereby does, move for an order setting aside and vacating the default judgment entered against defendant on the following date: _______________________ and granting defendant leave to defend the action. The motion will be made on the ground that the service of summons in this case did not result in actual notice to the defendant in time to defend. 

 

The motion will be based on this notice of motion and on the declarations of the defendant. The proposed answer to the complaint herein or other pleading or motion proposed to be filed and the memorandum 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:___________________________

Defendant in Pro Per

[BigDaddyBry]

DECLARATION OF _________________ IN SUPPORT OF MOTION FOR ORDER SETTING ASIDE AND VACATING DEFAULT [AND DEFAULT JUDGMENT] AND GRANTING DEFENDANT LEAVE TO DEFEND

 

I, ________________, declare:

 1. I am the defendant in the above-entitled matter.

2. I did not receive service of summons on the date claimed by the defendant.

3. I did not receive service of summons at any other date.

Statement of Facts:

1.      I am the Defendant in this action. I am a resident of _____________ and currently reside at _____________________.  I am over 18 years of age. I have personal knowledge of the facts contained in this declaration. If called upon to testify I could and would testify completely as to the truth of the facts stated here within.

2.      I make this declaration in support of my MOTION FOR ORDER SETTING ASIDE AND VACATING DEFAULT [AND DEFAULT JUDGMENT] AND GRANTING DEFENDANT LEAVE TO DEFEND.

3.      I have been a resident of Kern County since moving here on ____________. (see Exhibit X – Last Utility Bill at Previous Address) (Exhibit X - First Utility Bill at Current/New Address) (Exhibit X - USPS Confirmation of Change of Address) (Exhibit X - DMV Change of Address)

4.      My current address is __________________. (see Exhibit X – Utility Bill) (see Exhibit X – Driver’s License)

5.      Prior to this move, I lived in ___________ County at __________________. (see Exhibit X – Utility Bill)

6.      I have never been a resident of _______________ County.

7.      In comparison, I was properly served a Summons and Complaint in ___________ County on ________________.  (see Exhibit X – Summons, Case # XXXXXX).  This is an example of a proper and legally served Summons and Complaint, for Plaintiff’s reference.

8.      This date is prior to the alleged service performed on ________________.

9.      As previously stated, I have never been a resident of _____________ County.  For the record, I did not move to ____________ County after being served a Summons and Complaint in ____________County, then move back to ___________County after _____________2 as I live in a stable household and am of sane mind.

10.  After being sued in Civil Court in _______County and appearing at Trial, I performed an internet search on or around January 17, 2014, searching Civil Court records in surrounding counties.  I found the aforementioned case during the search of _____________ County’s Civil Court records.

11.  On January 17, 2014, I contacted the attorney on-record via email, communicating the erroneous service attempt at an address I never lived at. (see Exhibit X– Email Correspondence)

12.  I never received the Summons and Complaint from the Plaintiff in this action, purportedly served upon me ___________________.

13.  I am a homemaker, with three (3) school-aged children and one (1) dependent attending college.  Care, feeding, and transportation are provided solely by me. 

14.  The date in question,_______________, is a weekday.  Since relocating to _____________, I only have the possibility to visit family in___________ County and ______________County on weekends and holidays due to family obligations.

15.  As of the date of the signing of this declaration, I have not received a copy of the Summons and Complaint.

16.  My In-Laws reside at the address where the purported service was allegedly performed.  Neither of them even remotely fit the description stated in the PROOF OF SERVICE OF SUMMONS.  (see Exhibit XX – Proof of Service of Summons).

17.  Two females reside at ____________ both of Caucasian decent and appearance, both with light brown hair, both under 180 pounds, both wear prescription glasses. Neither has black hair, neither taller than 5’5”. (see Exhibit XX – Proof of Service of Summons).

18.  I do not fit the physical description on the PROOF OF SERVICE OF SUMMONS.

 

I declare under penalty of perjury under the laws of the State of California that the foregoing is

true and correct.

Dated:_______________                                           Respectfully Submitted,

      By:___________________________

Defendant in Pro Per

[BigDaddyBry]

THE COURT SHOULD GRANT DEFENDANT'S MOTION UNDER CODE OF CIVIL PROCEDURE SECTION 473.5 FOR RELIEF FROM THE DEFAULT AND DEFAULT JUDGMENT BECAUSE SHE RECEIVED NO ACTUAL NOTICE OF THE ACTION IN TIME TO DEFEND, SHE FILED A TIMELY MOTION FOR RELIEF, AND THE DEFAULT AND DEFAULT JUDGMENT WERE NOT CAUSED BY DEFENDANT'S AVOIDANCE OF SERVICE OR INEXCUSABLE NEGLECT.

 

A. Motion for Relief From Default for Lack of Actual Notice. When service of a summons

has not resulted in actual notice to a party in time to defend the action and a default or default

judgment has been entered against him or her in the action, the party may serve and file a notice

of motion to set aside the default or default judgment and for leave to defend the action (Code

Civ. Proc. § 473.5(a)).

 

B. Court May Grant Relief on Timely Motion if Defendant Not at Fault. On a finding by the

court that the motion was made within the period permitted by Code of Civil Procedure Section

473.5(a) and that his or her lack of actual notice in time to defend the action was not caused by

his or her avoidance of service or inexcusable neglect, it may set aside the default or default

judgment on whatever terms as may be just and allow the party to defend the action (Code Civ.

Proc. § 473.5©; Goya v. P.E.R.U. Enterprises (1978) 87 Cal. App. 3d 886, 890-891, 151 Cal.

Rptr. 258 ).

 

C. Granting of Relief Within Discretion of Trial Court. Whether or not relief should be granted under Code of Civil Procedure Section 473.5 is a matter within the discretion of the trial court ( Brockman v. Wagenbach (1957) 152 Cal. App. 2d 603, 611, 313 P.2d 659 ).

 

D. Policy Favors Application for Relief. Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails over the general rule of deference to the trial court's exercise of discretion, and doubts are resolved in favor of the application for relief from default ( Tunis v. Barrow (1986) 184 Cal. App. 3d 1069, 1079, 229 Cal. Rptr. 389 ).

 

Dated:___________________.                                  Respectfully Submitted,

      By:___________________________

Defendant in Pro Per

[BigDaddyBry]

ORDER OF COURT

 

The motion of _______________ for an order setting aside and vacating the default judgment heretofore entered came on for hearing by the court on the following date _____________. Plaintiff appeared by counsel ____________; defendant appeared in pro per.

 

The court, having considered the evidence presented at the hearing and the declarations submitted in support of and in opposition to the motion finds as follows:

 

1. The service of the summons did not result in actual notice to the defendant in time to defend;

2. The motion for relief was timely filed; and

3. The defendant's lack of actual notice in time to defend the action was not caused by his/her

avoidance of service or inexcusable neglect.

 

IT IS, THEREFORE, ORDERED that the default judgment heretofore entered in this action against defendant ________________ be, and hereby is vacated and set aside and defendant is granted leave to file his/her proposed answer and to defend the action.

 

Dated:_______________________.

_______________________

                                                                                                Judge of the Superior Court

[BigDaddyBry]

MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION

TO SET ASIDE DEFAULT

 Code of Civil Procedure Section 473.5 allows a Court to set aside a default judgment when service of a summons has not resulted in actual notice to a party in time to defend the action. This type of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. (Code Civ. Proc.,

§473.5(a).)  The Motion “shall be accompanied by an affidavit showing under oath that the

party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc., §473.5(.)

Here, the Respondent requests that the Court set aside the default and default judgment entered, and allow the filing of the Response. As explained in the attached declaration, Respondent was unable to defend the case due to lack of service. Contrary to the Proof of Service of Summons filed in this action, Respondent was not served. (See Declaration) Respondent would like the opportunity to have all the issues decided with the Court’s assistance.

 

Date __________________                                                   ______________________________

Respondent’s Signature

[shellieh98]

You got way to much there, they don't need to know all that, nor do they care. If a simple motion is to long, they may not read it. Don't tell them you were served on another matter, all the family stuff can go.

Only put the facts. You found the suit, you never lived in that county, you were never served. Include the order for the judge to sign.

[shellieh98]

And don't tell them your in laws live at that address either, you don't want them to think you may have received the papers thru them, let them justify to the court why they served a place you never resided and called it proper service. Judge may decide to dismiss with prej. As a sanction against them for sewer service

[BigDaddyBry]

Thank you for the feedback shellieh98.

 

I added the info regarding the address because, in my opinion, the natural question would be "why that address" and/or "do you know who lives there?"  If we're asked in court and it is not included in the declaration, then we'd lose credibility.  It would appear as if we were hiding delivery of the suit.  That was my line of thinking when including it.

 

I agree, I need to trim some fat from the declaration.  I included all facts in this first iteration.

 

Thanks again!

[BigDaddyBry]

Can anyone lend any advice on these matters?

 

1. Do I need to file a General Denial despite the fact I am not a resident of the county where default judgment was granted?

2. Can I sue for FDCPA violations surrounding the default judgment via filing in the wrong county and fraudulent service?  If so, is this to occur when they refile in the correct county, after the Motion is heard (in the incorrect county), or filed with the Motion (in the incorrect county)?

 

Thank you in advance for your help!

[BigDaddyBry]

Advice on these questions please.

 

If I do not hear back, we will file a General Denial with our Motion and research further if the default judgment in a county of non-residence is subject to filing a suit for a FDCPA violation. 

 

 

Can anyone lend any advice on these matters?

 

1. Do I need to file a General Denial despite the fact I am not a resident of the county where default judgment was granted?

2. Can I sue for FDCPA violations surrounding the default judgment via filing in the wrong county and fraudulent service?  If so, is this to occur when they refile in the correct county, after the Motion is heard (in the incorrect county), or filed with the Motion (in the incorrect county)?

 

Thank you in advance for your help!

 

[BigDaddyBry]

Finally had our hearing and am happy to report the motion was granted!  

 

The only downside is now we are stuck with the suit in a county we have never resided in.  I dropped the ball somewhere, I assume I should have just quashed service, but it is a small price to pay to get the default judgment removed.

 

Thank you all for your help.

[Seadragon]

redacted motion to quash.doc

[BigDaddyBry]

Thank you Seadragon!

 

It looks like this was the route to go.  Given we vacated the default in our last motion and are now back at the beginning stages of this case, did we miss our opportunity to file this motion?  Time is not a factor as we have 6 months until the Trial Setting Conference and it only takes weeks to get a motion on the calendar.

 

According to the judge, we have submitted to the jurisdiction of this court by filing an answer with our motion and paying the filing fees (both of which appeared necessary components of the Motion to Vacate),  Preference would be to have the case heard in our county.  Much more convenient even though we can do Call to Court for the Trial Setting Conference, but will have to appear for trial.

 

Thank you for your help.

[shellieh98]

I don't know about California rules, but you may be able to file an amended answer, asking for a change of venue. Look that up in your rules....amended answer .

[BigDaddyBry]

Thank you Sheila.

 

It does not look like the amended answer would get it moved to another county.  The motion to quash would get the desired result, I just don't know if it is too late to file that.

 

Does anyone know?  The case is currently in the county of San Bernardino.

 

Thank you for your help.