Legal Question in Credit and Debt Law in California

A credit card company filed suit in Contra Costa County Superior Court (civil limited jurisdiction) back in April 2009 against my husband for an allegedly outstanding balance on a credit card account. The balance in question was paid off in full as a condition of approval when we refinanced our home back in 2004. We immediately responded to complaint and the plaintiff's attorney and included copies of the check issued directly from the title company payable to the credit card company back in 2004 and the applicable mortgage escrow/title documents stipulating the conditions of approval for the loan. The plaintiff's attorney demanded we provide a copy of the cancelled check. Since the check was not issued from our account and the responsible title company was no longer in business, this was not possible. Therefore, we were left with no alternative but to try to defend the legal action. Since the attorney fees for a defense were almost as much as the demand, we decided my husband would proceed Pro Per. After a number of hearings, substitutions of plaintiff's attorneys, and court continuances, we finally went to trial on February 2, 2010; however, the plaintiffs failed to appear. Since the plaintiff's entire case was based on a sworn declaration from an employee of the credit card company and the declaration was submitted as evidence prior to trial, the judge indicated we would go on record proceed with trial as intended. After presenting our side of the case and answering questions asked by the judge under oath, the judge granted judgement on our behalf. The judgement was filed with the clerk on the same day as the trial. Now, 5 months later, we have received a Motion to Vacate Default Judgement from the plaintiff's attorney indicating that due to the plaintiff's prior attorney's failure to provide copies of the entire file when she substituted into the case, she appeared in the wrong department for trial; therefore, under Civil Code of Procedure 473(b), she requests the dismissal with prejudice be vacated and rescheduled for trial. In addition, the motion and its attachments reference an incorrect date for the hearing of the motion and the wrong court (as a matter of fact, the court referenced in the motion isn't even in the same jurisdiction. It's over 500 miles away.) The Declaration in Support of the Motion and the Proposed Order to Set Aside Dismissal reference an entirely different defendant.

First of all, I believe the judge issued the judgement on merit and not on default. Is this motion applicable to such judgement? Secondly, if the motion is applicable, is the court going to accept i


Asked on 7/13/10, 11:30 pm

3 Answers from Attorneys

Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

I have recently handled a number of stale debt cases and I would be very, very interested in hearing from you directly by email. When you write, please give the name of the plaintiff and the case number along with your contact info.

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Answered on 7/14/10, 7:34 am
Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

P.S. The New York Times is doing a story on cases like yours. If you like, I would be happy to put you in touch with the reporter.

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Answered on 7/14/10, 8:09 am

I would be very surprised if the court granted this motion. However, as a very young lawyer I learned from the partner I worked for that "sometimes a bad judge and a bad argument have a meeting of the minds." If you would like to meet for a half hour consultation with no obligation, I would be happy to look at the motion papers and give you my thoughts on how to respond. The only condition is that I WILL take the opportunity to pitch my services to file an abuse of process lawsuit for you against the plaintiff and its attorneys once the judgment is confirmed as final. ;)

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Answered on 7/14/10, 9:38 am


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