Legal Question in Appeals and Writs in California

setting judgement by default aside

I received an order for appearance for enforcement of judgement. the Judgement waswon by default for the amount of $100,000. I was never aware of any such court proceedings and was never served. after researching the file in the county clerks office the attorney is falsly stating that he personally served me. A whole year has gone by without my knowlede of a default judement occuring. I am looking at possibly havin to represent myself in this matter. What do I need to do in order to get the judge to see how frivolous this case is and the fact that it is my word against the attorney's on not being served? Is their a way to get this whole thing dismissed? Is their any possibility of making an appointment with the judge without representation to get this whole case thrown out? What are my rights?


Asked on 3/19/05, 12:58 pm

5 Answers from Attorneys

James Goff James R. Goff, Attorney at Law

Re: setting judgement by default aside

The key question is whether you owe the amount claimed in the judgment. If you do, the chances of success in setting aside the judgment are limited and your better recourse is trying to mitigate your losses. If there is no basis for the judgment your only recourse is through an equitable motion or separate lawsuit in equity to set aside the judgment. The time to move to vacate the judgment pursuant to CCP section 473 is six months, which according to your inquiry has long expired. Again, in a swearing contest you have a difficult task. It is more onerous if you need to proceed without benefit of counsel. You will not be heard by the court except through a motion in equity or an equitable suit to vacate the judgment. However, you must carry the burden of establishing that you were not served. Good luck.

Read more
Answered on 3/20/05, 4:43 am
Joel Selik www.SelikLaw.com

Re: setting judgement by default aside

The first thing is to attempt to set aside the judgment, which may be difficult based on age. You cannot have case dismissed by an "appointment" with the judge. You may be able to file for summary judgment, if applicable, or simply have your trial.

JOEL SELIK Attorney at Law

800-894-2889 760-479-1515 702-243-1930

www.SelikLaw.com

Licensed to Practice Law in California and Nevada Only CA Licensed Real Estate Broker

CONCENTRATING IN LITIGATION: REAL ESTATE, ELDER ABUSE, APPEALS, AND COLLECTIONS Personal Injury, Contracts, Tax Matters, Business, Malpractice, Appeals, Elder Neglect/Abuse/Nursing Home Malpractice Real Estate, and Other Legal Matters

This is just general information. No representations are made and no attorney client relationship is established by this communication. In most matters there are strict time limitations within which actions may be taken or your rights will be compromised. We are not taking any action on your matter and will not be considered your attorney or tax representative until both you and we have signed a fee agreement.

We, therefore will take no action on your behalf unless a written retainer agreement is signed. There are strict deadlines, called statutes of limitation, within which claims or lawsuits must be filed. Therefore, if you do not retain SELIKLAW, you should immediately seek the services of another attorney or other advisor.

If you send a lawyer or law firm email, your email will not create an attorney-client relationship and will not necessarily be treated as privileged or confidential. You should not send sensitive or confidential information via email. The lawyer or law firm to whom you are writing may not choose to accept you as a client. Moreover, as the Internet is not necessarily a secure environment it is possible that your email sent via the Internet might be intercepted and read by third parties.

Read more
Answered on 3/20/05, 11:38 am
Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

Re: setting judgement by default aside

The idea that you would consider attempting to "get an appointment with the judge" (you won't get one) reveals that you need legal help. You need to file a motion, in the proper legal form and without delay, for relief from default and default judgment under Section 473 of the Code of Civil Procedure. You would need to demonstrate you did not get notice of the judgment and that you have a defense to the claim. You had better get some good legal help, because you will only get one shot at your motion -- if you lose, the $100,000 judgment will stick. Even if you win the motion, you would then have to defend the lawsuit. You need to appear at the time and place listed on the Notice of Appearance you received, or you could be arrested. Make an appointment with a lawyer before then. If the claim could possibly be covered by your homeowners', renters' or auto insurance policy, call the insurance company without delay.

Read more
Answered on 3/19/05, 1:22 pm
OCEAN BEACH ASSOCIATES OCEAN BEACH ASSOCIATES

Re: setting judgement by default aside

A motion to set asside the default is your only option. Such motions do succeed on occassion. Call me directly at (619) 222-3504.

Read more
Answered on 3/19/05, 2:45 pm
Steven Murray Steven W. Murray, APC

Re: setting judgement by default aside

You definitely need to see an attorney, and immediately. There are several legal options open, including a motion in the existing suit, or even a new lawsuit to set aside the judgment. But a lawyer is mandatory - and if you have some kind of insurance (homeowners, business, auto) depending on what kind of incident the judgment is based on, then the insurer may defend you. Until then, you are a debtor and the creditor can use various enforcement methods to collect. Again, do not delay seeking professional assistance. And do not contact the lawyer for the creditor or the creditor.

Read more
Answered on 3/19/05, 5:52 pm


Related Questions & Answers

More Appeals and Writs questions and answers in California