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  1. #1
    Join Date
    May 2011
    Posts
    3

    Default Motion to Set Aside Default and Default Judgment

    My question involves court procedures for the state of: California

    Easy question here, involving being sued by the EDD in 2007. EDD won a default judgment against me as they used last known address from 2002! I did not find out about the judgment until Feb. 2011 when CA Tax Return was intercepted. Since then, they have really found me and have garnished wages. I found out that this should be straight forward - submitting a motion to set aside the default and the default judgment based on the fact that I was never properly notified. I can back this up with lease agreements stating my addresses over the years.

    I am broke as can be due to 25% garnishment so I want to get this motion right. I have found the sample from the Law Library, and have the right form on pleading paper. I know that I have to submit the notice of motion to set aside the default and default judgment and it must include an affidavit verifying that I did not have actual notice and it was not my fault. What I don't know about is the "answer, motion, or other pleading proposed." What exactly are these and where do they go? Also, I read that I have two years to submit this, but is it two years after I actually find out about the judgment (as in two years from Feb. 2011)? I can't believe that it would be two years from the judgment in 2007 as then I will have no recourse!

    Any help?

    Just found this:

    http://www.avvo.com/legal-guides/ugc...-in-california

    Are these forms acceptable to use? Just looking for a bit of guidance...thanks in advance for any help!

  2. #2
    Join Date
    Jan 2011
    Posts
    8

    Default Re: Motion to Set Aside Default and Default Judgment

    for a default judgement to be granted, service of process must be proper.
    It then follows that the judge must have been convinced service was completed somehow.

    service to you can be satisfactorily completed in the following ways:

    a process server hands you the notice of the complaint and copy of the complaint directly, at your home or elsewhere.

    a process server hands the notice of the complaint and copy of the complaint to any competent person over 18 at your residence. (roomate, sibling, mom, friend, etc)

    sending the complaint etc to you by return receipt registered mail; if you accept the registered mail and sign for it, service is completed.

    If none of the above work, the petitioner may serve you by public notice in a local news publication. you've seen legal notices in the paper, right? if the EDD didn't know where you were and couldn't serve you, but obviously knew the address you signed up for unemployment with, they could serve by publication. service would be complete upon publication of notice of complaint for an amount of time required by the laws in California.

    To get a default judgement, the petitioner must also show that you are a competent person over 18, and not a member of the armed forces who cannot respond because of duty assignment.

    You should make sure you fully understand how service was completed (or not) before attempting to get a default judgement reversed after so much time has passed.

    It may just end up being a lot of work for nothing if the service could be reasonably determined to have been properly done. You need to look at the case file and see what is there.

  3. #3
    Join Date
    May 2011
    Posts
    3

    Default Re: Motion to Set Aside Default and Default Judgment

    I did not receive service in any of the above mentioned manners, and no longer lived in the city in which my old address resided. I moved twice during the five years (starting at my first claim through the judgment date) and also left California and moved to Nevada right around the judgment date. I just came back to CA 9 months ago, so you can see all of this just caught up to me.

    How do I found out how they serviced me? Can I contact the EDD directly or do I need to contact the Court of Sacramento? I looked up the case online through SacCourt but it only shows my name and the EDD and the case number.

    Help...

  4. #4
    Join Date
    May 2011
    Posts
    3

    Default Re: Motion to Set Aside Default and Default Judgment

    Here is some important information that I could not find anywhere on the Internet!

    From the ALJ who heard my appeal of the overpayment from 2002:

    "Because the overpayment resulted in an innocent mistake, and not my a purposeful, wilful, and malicious attempt to defraud the State of California, the assessment is canceled due to the statute of limitation of one year to collect the overpayment."

    This is the IMPORTANT information, if anybody is getting sued or the EDD is attempting to collect on them, go through the trouble of filing your appeal! I filed mine five years late due to lack of service, and they allowed me to present the appeal on that grounds (the fact that it was late). Turns out it was all worth it - they were collecting and garnishing $5000 on a $2400 overpayment. I was fighting it on principal, but it turns out I will be getting every cent of my money back!

    Thanks for the assistance!

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