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Vacating a default judgment

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gingerox

Junior Member
What is the name of your state? CA

Hi there - I recently discovered a default judgment pending against me which was served to an invalid address and now the plaintiff is threatening wage garnishment.

I have copy of the judgment which shows proof of service to that invalid address. How can I motion to vacate this judgment?

Can the plaintiff enforce the judgment knowing that I will file to have it vacated?

Finally, if the plaintiff acknowledges that the address is invalid and agrees to vacate the judgment in order to properly serve a new judgment, is this something that has to be done in court or can it be done in writing (between the parties and/or to the courts)?

Please advise. Thank you!
 


Zephyr

Senior Member
I wouldn't hold my breath on the plaintiff agreeing to that- they've already won, why would they take a change of having their judgment thrown out?
 

gingerox

Junior Member
Zephyr said:
I wouldn't hold my breath on the plaintiff agreeing to that- they've already won, why would they take a change of having their judgment thrown out?
Thank you for your reply.

After several recent phone conversations with the plaintiff's representation (a shady collections law firm), they have asked me to send them a letter disputing the validity of service (which I haven't done yet), and they have strangely acknowledged that I should motion to vacate this judgment, and that they'd serve me with new papers legitimatley. Which is fine with me, since I have an affirmative defense in court, but was never given the opportunity to dispute it in the first place.

What do you think would be the best way to proceed? Should I start putting things in writing?
 

badapple40

Senior Member
What address did they serve, when did they serve that address, and what connections do you have with that address?

You need to file a motion. It needs to have proper evidentiary support, like an affidavit, indicating that you never lived where they said you did.
 

gingerox

Junior Member
badapple40 said:
What address did they serve, when did they serve that address, and what connections do you have with that address?

You need to file a motion. It needs to have proper evidentiary support, like an affidavit, indicating that you never lived where they said you did.

They served me at an address they found on one of my credit reports (which I've asked the credit agency to have removed as it has nothing to do with me). Per the judgment, the papers were served in April of 2005. Then, they contacted me in November of 2005 at work to tell me they have proceeded with wage garnishment (which they never actually did). This was all news to me. I have never lived at that address, never heard of it, I have no affiliation with it whatsoever. The address is in an adjacent city to my real address, and it was signed for by a person who has the same last name as me. No affiliation to me. Obviously, some major error. I've stated this to the plaintiff's law firm many times.

When I file a motion to vacate the judgment, do I include a letter/affidavit with the paperwork or is this something I'd have to present at the hearing?
 

badapple40

Senior Member
gingerox said:
They served me at an address they found on one of my credit reports (which I've asked the credit agency to have removed as it has nothing to do with me). Per the judgment, the papers were served in April of 2005. Then, they contacted me in November of 2005 at work to tell me they have proceeded with wage garnishment (which they never actually did). This was all news to me. I have never lived at that address, never heard of it, I have no affiliation with it whatsoever. The address is in an adjacent city to my real address, and it was signed for by a person who has the same last name as me. No affiliation to me. Obviously, some major error. I've stated this to the plaintiff's law firm many times.

When I file a motion to vacate the judgment, do I include a letter/affidavit with the paperwork or is this something I'd have to present at the hearing?
Present the affidavit with the motion, explaining the facts that you explained above.
 

gingerox

Junior Member
badapple40 said:
Present the affidavit with the motion, explaining the facts that you explained above.
Thank you for your advice! I will submit an affidavit with my motion to vacate the judgment.

For clarification, does an affidavit have to be anything fancier than a document/form stating my name, parties involved, the facts, etc. and then having it notarized?
 

badapple40

Senior Member
gingerox said:
Thank you for your advice! I will submit an affidavit with my motion to vacate the judgment.

For clarification, does an affidavit have to be anything fancier than a document/form stating my name, parties involved, the facts, etc. and then having it notarized?
Although not required, I have a standard intro paragraph to all affidavits, to ensure they conform with evidentiary rule requirements:

I, _______________ having been duly cautioned and sworn, state that I have personal knowledge of the facts contained in this affidavit, that I am competent to testify in the matters herein, that I am over the age of 18, and that all of the statements contained herein are accurate and true, as I verily believe:
 

gingerox

Junior Member
badapple40 said:
Although not required, I have a standard intro paragraph to all affidavits, to ensure they conform with evidentiary rule requirements:

I, _______________ having been duly cautioned and sworn, state that I have personal knowledge of the facts contained in this affidavit, that I am competent to testify in the matters herein, that I am over the age of 18, and that all of the statements contained herein are accurate and true, as I verily believe:
Thank you VERY much! This truly helps!

Last question and I'll stop buggin you...

If the motion to vacate is granted and the plaintiff proceeds to properly serve me with a new judgment (which I have an affirmative defense to), would that be the proper time to send the plaintiff a cease & desist letter as a response to their claims?
 

You Are Guilty

Senior Member
gingerox said:
Thank you for your advice! I will submit an affidavit with my motion to vacate the judgment.

For clarification, does an affidavit have to be anything fancier than a document/form stating my name, parties involved, the facts, etc. and then having it notarized?
Badapple's "form" is a keeper, but to answer your question, an affidavit is only an "affidavit" when it's sworn to (usually "under the penalty of perjury") and notarized. Otherwise, it's just a piece of paper with some writing on it.
 

dcatz

Senior Member
All of the advice that you've been given is very good, but the "affidavit" that you'll be submitting in California will be denominated a "Declaration". It doesn't have to be notarized, but the "magic language" that badapple40 provided, while adequate and proper in many other states and forums will have to be changed for CA. Use:

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed this February 28, 2006 at (City), California.

________________________________
Defendant, In Propria Persona

California provides Small claims forms to seek to vacate Small Claims court defualt judgments. They are very simple, as is the Small Claims process itself. Look on the Court's web site or call the Court to check where they can be downloaded.

Now, let's take a step back. You're past the point of a C&D letter. You're in litigation.
You filed your question in the Samll Claims forum, so I'll assume that this is a Small Claims judgment. (In a higher forum, you would have to file an Answer as part of your motion.) In Small Claims, if the motion is granted, plaintiff and defendant will be given a new date for a new hearing on the claim. If the defendant shows up on the date that the motion is heard, the Court is likely to give you both an opportunity to have the hearing at that time. You'll have the opportunity and right to decline, but be prepared, if you want to get it over with.

Once a hearing date is set and the plaintiff has Notice, no they can't proceed to enforce the existing judgment.

While the effort to vacate a default judgment in Small Claims is simple and expedient, you both can also agree to do this by Stipulation, that you both sign and file with the Court.
 

gingerox

Junior Member
dcatz said:
All of the advice that you've been given is very good, but the "affidavit" that you'll be submitting in California will be denominated a "Declaration". It doesn't have to be notarized, but the "magic language" that badapple40 provided, while adequate and proper in many other states and forums will have to be changed for CA. Use:

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed this February 28, 2006 at (City), California.

________________________________
Defendant, In Propria Persona

California provides Small claims forms to seek to vacate Small Claims court defualt judgments. They are very simple, as is the Small Claims process itself. Look on the Court's web site or call the Court to check where they can be downloaded.

Now, let's take a step back. You're past the point of a C&D letter. You're in litigation.
You filed your question in the Samll Claims forum, so I'll assume that this is a Small Claims judgment. (In a higher forum, you would have to file an Answer as part of your motion.) In Small Claims, if the motion is granted, plaintiff and defendant will be given a new date for a new hearing on the claim. If the defendant shows up on the date that the motion is heard, the Court is likely to give you both an opportunity to have the hearing at that time. You'll have the opportunity and right to decline, but be prepared, if you want to get it over with.

Once a hearing date is set and the plaintiff has Notice, no they can't proceed to enforce the existing judgment.

While the effort to vacate a default judgment in Small Claims is simple and expedient, you both can also agree to do this by Stipulation, that you both sign and file with the Court.
Wow, thank you for that!

I haven't filed anything with anyone yet. If the plaintiff (who is a collection agency, not the original creditor) is claiming the alleged debt is approx $20K, is this still a small claims issue?

If we agree to vacate by stipulation (let's say for example, in order for me to be properly notified at the correct address), does this make the vacated judgment null and void? Would the plaintiff be able to immediately serve a new summons, or would they have to start over by sending written verification of the "debt" with all proper disclosures, etc.?

At which point would be best to dispute the validity of the actual claim? (because the "debt" to the original creditor has long expired under CA Statue of Limitations...I have no contract with, nor any legal obligation to pay the plaintiff/collection agency who is suing me). How/when should I make the plaintiff aware of this?

Also, at which point could I counter sue the plaintiff for their numerous violations as a collector under of the Fair Debt Collection Practices Act?

Many thanks again!
 

badapple40

Senior Member
You could probably sue them under the FDCPA at the point they violate the act. I'd not only send them a motion to vacate, I'd also send them correspondence requesting that they verify the debt.
 

gingerox

Junior Member
badapple40 said:
You could probably sue them under the FDCPA at the point they violate the act. I'd not only send them a motion to vacate, I'd also send them correspondence requesting that they verify the debt.
Since I still have to file a motion to vacate with the county clerk, should I notify the plaintiff that I am in the process of filing this (to cease any enforcement efforts they may make) and that I will send them a copy of the official notice when complete?

Can I send them a letter requesting verification of the debt before I have the notice to vacate filed?

Also, is it a good idea to notify the plaintiff of their FDCPA violations and my intent to file complaints with the Federal Trade Commission and potentially counter sue for damages?
 

dcatz

Senior Member
Originally Posted By gingerox
I haven't filed anything with anyone yet. If the plaintiff (who is a collection agency, not the original creditor) is claiming the alleged debt is approx $20K, is this still a small claims issue?
Glad you mentioned that. You started in the wrong place. Forget everything that I said about Small Claims.

While the plaintiff knows now, it's not clear from your post that it knew the address was wrong when process was served. For me, there is nothing in your post that clearly suggests an FDCPA violation - not yet anyway. That may just be a matter of information that you haven't provided yet, but I don't see it. On the other hand, it does sound as if the plaintiff is making a good-faith effort to set things right.

They are offering to vacate the judgment. They are not going to serve you with "a new judgment". It doesn't work like that. They are probably proposing to serve you with new/correct litigation and start again. If this is the case, and they are proposing to do it by way of Stipulation, I'd consider that offer. Vacating the judgment via motion is something that may be very involved for you, if you're going to do it yourself. And remember, I said your proposed answer must also be attached.

Read Calif Code of Civil Procedure §473.5. You can find that here:
http://www.leginfo.ca.gov/calaw.html
You may also want to take a look at §473, depending on the facts of your case.

You won't file the motion with the County Clerk, if that's the way you go. You'll file it with the Court and serve it on the plaintiff and attach Proof of Service to the Court filing. You'll pay a filing fee for the motion and, if it's granted, a filing fee to have your Answer lodged. In all, it's going to be about $450.

Your question about verification is interesting. The FDCPA says that you have that right within 30 days of the first dunning notice, and there is noting in your post that suggests that they sent you one. Still, given the snafus so far, my guess is that they would respond just to keep their slate as clean as possible. (But you can look to the "plain language of the statute" for your answer.) It appears from your post that they would be within their rights to ignore the request, but you'll have all the information you need, once you're served with the new suit.

One last comment: Since you're both going to be incurring new expenses, if you have no defense to the claim (and none is mentioned in your post), this might be a very good time to try to open settlement discussions. An adverse judgment down the line is going to be much more costly.
 
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