Stipulating To Vacate A Default Judgment

[jameslmulligan]

I'm a new attorney and I have taken on a collections matter as a favor to a friend. I'm hoping an attorney with knowledge of California Civil Procedure might lend me their insight.

My client had his identity stolen and a bank that issued a credit card to the thief sued my client. My client was never served as the bank served a person unknown to my client at the fraudster's address. A default and default judgment were entered against my client. An assignee of the judgment found my client a year later and put a lien on his home (his actual home).

Anyway, after some lengthy and contentious negotiations, I convinced the bank of both the fraud and the failure to obtain jurisdiction over my client through proper service and the bank/assignee agreed to stipulate to vacating the judgment. So I typed the stip, sent it to them and they signed it and sent it back. I was simply going to sign the thing and file it with the court.

But we've never appeared in this case. I'm going to send in a stipulation signed by their attorney and by me, but I am unrecognizable to the court and the proceeding.

So I'm thinking I would file a notice of special appearance but I'm not really sure what that entails. My practice guides suggest that it's often used to argue that personal jurisdiction was not obtained and that's the case here, but we really want nothing more than to make an appearance to say "here we are and he's my attorney" and then file the stipulation vacating the judgment.

This is a little embarassing because you'd think an attorney would know this but I'll be honest, I've been at this part-time for 6 months and I'm comfortable with the law but I'm FREAKING BAFFLED by procedure.

For the record, I suppose the plaintiff could waive the judgment but I feel like they've done more than they were predisposed to do already and I don't want to go back to them signed stip in hand and ask them now to move on their own to accomplish the same goal. If that makes any sense. If any of this does.

[Mr. Knowitall]

Your stipulation is to vacate the judgment? And then what? Does the stipulation provide for dismissal? With or without prejudice?

[jameslmulligan]

Thanks for responding Mr. Knowitall. In fact, the stipulation does not address dismissal at all. It simply stipulates to vacate the judgment. I assumed that this would leave the plaintiff in the position of having to re-serve us. The plaintiff does not want to stipulate to dismiss with prejudice because they have not completed entirely their investigation into the fraud. While they know what happened on the ID theft, to date...they've simply acknowledged that my client was never served.

[Mr. Knowitall]

If that's the intended net result, and they're doing you the favor of agreeing to vacate the judgment, why not simply appear and defend? Do you think there is a lack of either personal or subject matter jurisdiction on the part of the court?

[jameslmulligan]

Well, we're actually assuming that they would not re-serve and would eventually dismiss the complaint upon completion of their formal investigation. But you're right...I screwed up the stipulation by not providing for the next step. I think I should have stipulated to vacate and dismiss without prejudice. Then my client would have been okay until such time as they refiled.