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Motion to set aside default

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MsMeL8er

Guest
What is the name of your state? California
I filed a lawsuit against someone for a substancial amount of money. (over $10,000). I have a very strong case so I started this pro per. (although I did seek an attorney's advise before I filed).
The defendant was properly served by a process server. He did not answer the complaint in the allotted time. I filed for entry of default and default judgement.
Over a week later I got a call from his attorney accusing me of "racing to the courthouse steps to file default" (telling me the court looks badly on this) and asking me to sign a paper to set aside the default so the defendant could file his response. (the attorney was very threatening... saying he could make me pay his fees if he had to file to set aside the default)
I refused to sign. He harrassed me with several letters and phone calls.
Now he has filed a motion to set aside the default. His reason for missing the answer date is "Defendant's Motion is based upon the mistake, inadvertence and/or excusable neglect of Deft's counsel. He said "due to uncertainty of when Deft was actually served, deft's response was not filed until after the deadline.
My question is, "Isn't it their own responsibility to know when the answer is due and is it likely that the default will be set aside under these circumstances??
Also, I think the attorney wasn't truthful in some facts on the motion. He claimed to have attempted to file the answer On Oct. 25, (default was filed on the 22nd) when in actuality he didn't attempt to file the answer until Oct. 29th. (case records are available here where I live and I can look up all info on the computer) Can he lie like that? Also, won't an attorney be sanctioned for missing a filing date?
Thanks so much for your advice.
Susan
 


stephenk

Senior Member
you need to file an opposition to the motion and include the facts you just stated. you only have a certain amount of time to oppose the motion depending on when the hearing is set. consult with an attorney or go to a law library and look under the code of civil procedure regarding motions and defaults.
 
M

MsMeL8er

Guest
Thank you StevenK. I will do that. I guess it's time for me to get an attorney. I did all the initial filing pro per because I feel I have a really strong case, but I think I'm getting in over my head now. (I've spent countless hours researching)
What would be the best way to get a good attorney referral? I live in Riverside. I tried an attorney referral service, but wasn't comfortable with whom they referred.
Thanks again for your help.
Susan
 

stephenk

Senior Member
call the local bar association in Riverside. they can refer you to an attorney. make sure you tell them what type of case you have so you can be referred to the right attorney.
 
M

MsMeL8er

Guest
Thanks again, StevenK. I will check with the bar association tomorrow.;)
 

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