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Never Served, Now Fighting Default Judgment

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  • 08-26-2008, 08:55 PM
    frustrated222
    Never Served, Now Fighting Default Judgment
    My question involves judgment recovery in the State of: California

    I'm presently working to set aside a judgment obtained in a case in which I wasn't served. They claimed substitute service at a very old address and obtained a judgment and mail served notice to the old address. I moved to set aside the judgment when I was properly served for an OEX but motion was denied because more than two years have passed since judgment was obtained. Can't I sue to have the judgment set aside? I could really use some help on how to go about this.
  • 08-27-2008, 07:35 AM
    M'sta Mikey
    Re: Never Served, Now Fighting Default Judgment
    Did you change your address at the post office every time you moved? When they attempted to serve you, they use the last known address you had on file. If they cannot locate you, the claim proceeds without you and therefore the default judgment you mentioned.
  • 08-27-2008, 12:37 PM
    lwpat
    Re: Never Served, Now Fighting Default Judgment
    You will have to appeal the judge's decision. A year is the deadline in Rule 60 so you would have to argue some type of equitable relief from the rule.
  • 08-27-2008, 07:38 PM
    frustrated222
    Re: Never Served, Now Fighting Default Judgment
    Quote:

    Quoting M'sta Mikey
    View Post
    Did you change your address at the post office every time you moved? When they attempted to serve you, they use the last known address you had on file. If they cannot locate you, the claim proceeds without you and therefore the default judgment you mentioned.

    This matter is complicated, as I'm sure most are. Suffice it to say that the party now trying to collect on their judgment served me via substitution at an address that they knew I'd left several years before. Additionally, they knew when I moved and where I'd moved to and made no attempt to serve me at the new address. Furthermore, they're trying to collect on a debt that I absolutely do not owe. I could have proven that years ago if I'd known about the case, but I never got the chance. This is not about me hiding. I've moved twice in the last 12 years. This, to me, is about sloppy/opportunistic collections work that led to a judgment that became old and dusty before they came with an OEX. Now, since so much time has gone by, the statute of limitations (2 yrs.) to void a judgment works in their favor. I believe that I can sue them for lack of jurisdiction due to lack of service and have the judgment voided that way, but I'm not an attorney and need to know if I'm right. I can't believe that someone could engage in what I've heard called "sewer service", get a judgment, mail serve the same address, then wait for the statute of limitations to expire and I'd be stuck paying a judgment that they had no business winning in the first place. Am I right?
  • 08-27-2008, 07:43 PM
    frustrated222
    Re: Never Served, Now Fighting Default Judgment
    Quote:

    Quoting lwpat
    View Post
    You will have to appeal the judge's decision. A year is the deadline in Rule 60 so you would have to argue some type of equitable relief from the rule.

    I'm not sure what Rule 60 is, but the judge said that I had a very compelling case but that he felt that he had to deny my motion due to the statute of limitations. He also told me to go back and look at the civil code because I might find another way to attack the problem. In looking, I found that, if I bring a separate action attacking the judgment for lack of service, the statute of limitations does not apply. Am I interpreting this correctly?
  • 08-28-2008, 07:21 AM
    lwpat
    Re: Never Served, Now Fighting Default Judgment
    I am not really up on CA law or their court rules. I would think you will have to appeal the judge's ruling and you have a time limit so you will have to act quickly. Do some research on equitable estoppel or equitable tolling. Normally you would have to raise these during the original hearing so you now may be barred from raising them unless you can get something on the record by way of a post trial motion. Usually you only have ten days to file a post trial motion with leave of the court so check with the clerk. You also have a res judicia problem if you try a new suit.

    Quote:

    I could really use some help on how to go about this
    I always hate it when people go into a court without at least consulting an attorney to be sure they raise all the issues. It doesn't matter how strong a case you have if you can't properly present it and I have seen even attorneys flub that part. I strongly recommend that you pay an attorney for an hour or so of his time to review the paperwork and give you some advice. He can tell you whether a new suit attacking service is possible.
  • 08-28-2008, 02:21 PM
    frustrated222
    Re: Never Served, Now Fighting Default Judgment
    Thanks so much for your helpful comments! I've had to Google a bunch of terms...estoppel, tolling, etc. and I've learned a lot! First, I did pay for a few hours of consulting and the thought was that if we simply addressed the service issue, perhaps the 6 month window that I have to address a case after learning about it would override the 2 year statute of limitations. As it turned out, we were wrong. However, I believe the court went out of it's way to enable me to obtain justice down the road a bit and I just want to be sure that I'm right.

    Here's what I'm thinking. The court specifically told me to go back and look at the portion of the California Civil Code on which it based it's ruling. The court instructed me that I might find another way to attack the problem there. That seems like a pretty big hint to me. In reviewing that portion of the Code, I learned that there is no time limit on a collateral attack on the judgment. The recent denial of my motion is not entitled to collateral estoppel effect (unless I had the opportunity to present oral testimony at my hearing and the issues were fully litigated...which was not the case. The only issue addressed in the ruling was the 2 year statute of limitations). I can still file an independent action to set aside the judgment for lack of personal jurisdiction. In denying my motion based on the statute of limitations for challenging a judgment, the court did not address my claims or the counter claims of the plaintiff. As a result, another judge hearing a new action brought by me would not find itself in the position of questioning the wisdom of the inititial ruling, so I don't think that res judicia would be an issue. I like the equitable tolling angle, but if I go down that road with a post trial motion and still lose based on the statute of limitations, it might open the door (or not) to res judicia issues with an independent action later.

    I'm inclined to think that, since the court pointed me toward a collateral attack on the judgment and the issue of the statute of limitations would not apply, my best course of action would be to file said attack and simply demonstate that I was not served, thus winning a void judgment. Does that seem to make sense? Additionally, I'll need to file a motion to stay the OEX until my collateral attack is heard. Is it best to do this all at once...and how would I do that? What would be the basis of my request for the stay on the OEX?

    Thanks again!
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