Results 1 to 8 of 8
  1. #1
    Join Date
    Dec 2008
    Location
    SoCal
    Posts
    22

    Default Proper Service of Superior Court Summons in California

    My question involves court procedures for the state of: California

    Yesterday, we discovered that a default judgment has been entered against my wife regarding unpaid cc debt. While we don't dispute the debt, this caught us completely off guard.

    Facts:

    AMEX filed suit for recovery of cc debt in June 2010.

    The Proof of Service indicated substituted service. It indicated that service was made to "co-tenant" of my wife, a guy named "John Jones" at the address where we USED to live 6 months prior. We sold that house to someone who apparently has tenants in there. We don't know them, nor have any contact at all. When we moved we filed change of address with post office, our attorneys, and even THIS creditor AMEX. The Proof of Service and Due Diligence certification was completed by the process server and he apparently also mailed copies to the same address where he served the summons. We never received anything at the new address, where we still live today.

    Soon after, a default judgment was entered in favor of AMEX, then just recently a writ of execution was granted, the sheriff served on our bank, and took some money from one of our accounts, but not nearly enough to satisfy the debt.

    The immediate issue is for us to get that levy suspended by a judge before we put any more money into it through our payroll direct deposits. We probably have everything available to us to prove up this issue. Then, after a "petition or whatever" I would think that the judgment could be vacated, then AMEX would start the process all over again.

    I don't see how we were properly served. Honestly, no BS, we didn't know this was going on or we certainly would have answered any summons served upon us.

  2. #2
    Join Date
    May 2011
    Posts
    638

    Default Re: Proper Service of Superior Court Summons in California

    This is where you need a motion to quash service. You must file that motion first, before you do anything else with the court or you can lose the right.

    In the motion you ask the court to dismiss the judgment because you were never served. In most states this is one motion which must be notarized. Attach some utility bills and any other proof of where you were living at the time.

    You should swear four things. That you weren't living there, that no one related to you was living there, that you were living somewhere else (with proof such as utility bills,) and you were never served.

    It may seem strange, but this is a jurisdictional issue. The court doesn't have jurisdiction until you are properly served, so make mention of that when asking for dismissal in your motion.

    Be sure to include the normal proof of service statement at the end of your motion, and ask the court clerk about service in your state. Likely for this it is my regular mail but be sure.

    You can, as the last request in your motion ask for a return of your confiscated money but good luck, you are now the creditor.

    Just be aware that you are only stalling. The creditor can immediately serve you new papers and get a new judgment.

  3. #3
    Join Date
    Dec 2008
    Location
    SoCal
    Posts
    22

    Default Re: Proper Service of Superior Court Summons in California

    "It may seem strange, but this is a jurisdictional issue. The court doesn't have jurisdiction until you are properly served, so make mention of that when asking for dismissal in your motion."

    Why wouldn't they have jurisdiction? The matter was heard last August, AMEX won a default judgment because my wife didn't appear because she (we) didn't even know it was happening. The jurisdiction court is same for judgment & levy. I understand, I think, because if there was no proper service, everything stemming from that is as if it didn't happen. I realize this is a stalling maneuver, but I really need to get my bank account freed up. I downloaded the docs from the court's website, I understand your suggestions, TY very much. Filing today & trying somehow to get some expediency.

  4. #4
    Join Date
    May 2011
    Posts
    638

    Default Re: Proper Service of Superior Court Summons in California

    Quote Quoting Coronasteve
    View Post
    "It may seem strange, but this is a jurisdictional issue. The court doesn't have jurisdiction until you are properly served, so make mention of that when asking for dismissal in your motion."

    Why wouldn't they have jurisdiction? The matter was heard last August, AMEX won a default judgment because my wife didn't appear because she (we) didn't even know it was happening. The jurisdiction court is same for judgment & levy. I understand, I think, because if there was no proper service, everything stemming from that is as if it didn't happen. I realize this is a stalling maneuver, but I really need to get my bank account freed up. I downloaded the docs from the court's website, I understand your suggestions, TY very much. Filing today & trying somehow to get some expediency.
    That's why I said "this may seem strange." The court has general jurisdiction over such matters, of course. But they don't gain specific jurisdiction over you as an individual in this instant case until you are properly served.

    I'm sorry, "the instant case" means the case before us - your case we're talking about. You have to be properly served before the court can take jurisdiction in this case.

    Quote Quoting Coronasteve
    View Post
    Filing today & trying somehow to get some expediency.
    Even if you win your motion to quash service, and get the judgment dismissed, you still have to collect your money back. That why I said "you are now the creditor." Don't think that AMEX or their agent will just hand you a check. You will have to go into collection mode. Before you succeed at that, AMEX will have re-served you properly and will get another judgment.

    All your motion to quash service will do is to stall AMEX from taking more money for a while. If you actually didn't owe the money, that would open more avenues, but that's not the case here as I understand it.

  5. #5
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Proper Service of Superior Court Summons in California

    There are two different types of jurisdiction: subject matter jurisdiction and personal jurisdiction.

    Information on setting aside defaults can be read here.

  6. #6
    Join Date
    May 2011
    Posts
    638

    Default Re: Proper Service of Superior Court Summons in California

    Quote Quoting Mr. Knowitall
    View Post
    There are two different types of jurisdiction: subject matter jurisdiction and personal jurisdiction.

    Information on setting aside defaults can be read here.
    Correct. This is a question of lack of personal jurisdiction.

    "A common way default judgments are considered void is if the judgment was obtained after improper or fraudulent service, resulting in a lack of personal jurisdiction over the defendant. There are many other ways in which a default judgment may be void."

    Also note:

    Laws and organizations charged with regulating judicial conduct may also impact pro se litigants. For example, The State of California Judicial Council has addressed through published materials the need of the Judiciary to act in the interests of fairness to self-represented litigants. The California rules express a preference for resolution of every case on the merits, even if resolution requires excusing inadvertence by a pro se litigant that would otherwise result in a dismissal. The Judicial Council justifies this position based on the idea that "Judges are charged with ascertaining the truth, not just playing referee... A lawsuit is not a game, where the party with the cleverest lawyer prevails regardless of the merits." It suggests "the court should take whatever measures may be reasonable and necessary to insure a fair trial" and says "There is only one reported case in the U.S. finding a judge's specific accommodations have gone too far".

    John Greacen, Greacen Associates LLC "Ethical Issues for Judges in Handling Cases with Self-Represented Litigants" courtinfo.ca.gov

    (quoting Gamet v. Blanchard) (111 Cal.Rptr.2d 439 (2001) 91 Cal.App.4th 1276)

    ----------------------------------

    She's still just stalling the inevitable, IMHO, with little to no chance of recovering the money taken so far.

  7. #7
    Join Date
    Dec 2008
    Location
    SoCal
    Posts
    22

    Default Re: Proper Service of Superior Court Summons in California

    Aha moment:

    End of the first paragraph from the link:

    "The defendant bears the burden of proving to the court that he or she is entitled to relief from default. The moving party also must show that they have a meritorious defense to the original case."

    Buh bye.

  8. #8
    Join Date
    May 2011
    Posts
    638

    Default Re: Proper Service of Superior Court Summons in California

    Ouch. I guess that blows that, huh. Sorry I missed that...

    1. Sponsored Links
       

Similar Threads

  1. Collection Lawsuits: Proper Service of Summons
    By RC#2303 in forum Debts and Collections
    Replies: 2
    Last Post: 11-11-2010, 09:10 PM
  2. Denial & Appeals: Appealing CUIAB Decision to California Superior Court
    By africaroots in forum Employment and Labor
    Replies: 1
    Last Post: 09-10-2010, 08:34 AM
  3. Civil Procedure Issues: California Superior Court Civil Suit Self Representation
    By CAron in forum Civil Procedure
    Replies: 3
    Last Post: 12-19-2009, 04:39 AM
  4. Plea Bargains: Harvey Waiver in California Superior Court
    By lvs2gin in forum Criminal Procedure
    Replies: 9
    Last Post: 08-07-2006, 06:55 PM
  5. Eviction Process: Proper Service of Summons and Complaint
    By B Man in forum Landlord-Tenant Law
    Replies: 5
    Last Post: 03-24-2006, 05:30 PM
 
 
Sponsored Links

Legal Help, Information and Resources