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  1. #1
    Join Date
    Mar 2006
    Location
    California
    Posts
    1

    Default Does a Vacated Judgment Reset the Statute of Limitations

    Being that I am new here, thanks in advance for any useful advice given

    My wife stopped paying a creditcard company on a $15,000 balance over a dispute regarding several thousand dollars in charges.

    The company "charged off" this account. A 3rd party purchased the account, and sued us for the balance in December of 2002/January 2003. We were not served (or were improperly served, I guess) , and had not been living at the location where they claimed to have served us for several months. We have utility bills and other documentation atesting to this. (We know that the property had been rented to another individual, with whom we are not aquainted) In short, the process server committed perjury. As such, we were unaware of the suit or default judgment.

    We were just recently made aware of the suit/judgement, when it appeared on my wife's credit statement.

    Given that process was not served - or not served correctly - we intend to file to have the default judgment vacated. (My understanding is that we have up to 180 days from the time we became aware of the judgment to do so.)

    We stopped payments in 2002, the statute of limitations would have ordinarily passed by now, regarding the ability of the company to sue for this debt.

    HERE's the rub: Does having the judgment vacated in any way "reset" the statute of limitations? It seems as though it shouldn't, as this could give the creditor an almost unlimited extension of the SOL, but I'm hoping that someone knows for sure or can offer good advice.

    Again, as this is my first post in this forum, I doubly appreciate any thougtful replies or advice.
    [/i]

  2. #2
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default

    I believe you are looking at this provision of the California Code of Civil Procedure:
    Quote Quoting California Code of Civil Procedure, Section 473.5.
    (a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

    (b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

    (c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.
    That seemingly gives you a maximum of two years from the date of the entry of judgment to object to nonservice. However, the unpublished case of Shrokian v Divko West Properties, Inc, No. B179345 (Cal App, 5th Cir, Nov. 7, 2005), indicates that a court may also have discretion to set aside a judgment for reasons of nonservice under Civil Code Section 473(d):
    [quote'"California Code of Civil Procedure, Section 473.5"](d) The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.[/quote]However, it is not clear that the reasoning of that case would be sufficient to overcome the two-year limit for challenging a default judgment - if you are beyond two years, you should consider discussing your situation with a local lawyer.

    The question of service is interesting, as presumably the original summons has long-expired. It might be within the equitable power of the court to renew the summons based upon the timely filing of the complaint, if the court believes that the plaintiff was duped by a process server. I can't find any authority with an admittedly relatively superficial case law search on LexisOne, so I have no definitive answer for you.

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