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  1. #1
    Join Date
    Jan 2010
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    3

    Default This Judgement Has "Vacate" Written All Over It

    My question involves collection proceedings in the State of: California

    (all names and numbers and addresses are anonymized)

    First off, this debt collection agency delivered the summons to 100 Smith Road rather than 140 Smith Road (my residence,) addressed to Jane Doe, (NOT me) the receptionist in the building attached to mine. She signed the paperwork, and I was unaware of my summons until well past the court date.

    Third... or fourth... I've lost track... The debt was accumulated by my business, which was incorporated at the time. However, this judgement was in my name, John R Smith, not Smith Widgets and they have a judgement against my personal property.

    I have spoken to a lawyer about this, he tells me that he will need to spend six plus hours "writing a small novel" with affidavits and citations of past cases and legal decisions in order to vacate this judgement.

    He also said something else interesting. The judgement was filed on 01/6/06, the court didn't stamp the document until 2/16/06 and I may be able to stall these debt collectors beyond the four year collection point and they will not be able to collect their unspecified huge sum of money. Does the statute begin when the judgement is filed, when the documents are received by the court, or when the judgement is granted?

    I need advice on how to get this done myself, I have a feeling that with all of these clerical errors in the collectors' original filing, I can get this done myself. What do you guys think?

    Thanks in advance!

  2. #2
    Join Date
    Jan 2006
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    38,867

    Default Re: This Judgement Has "Vacate" Written All Over It

    a judgment has a 10 year statute of limitations and is renewable in California.

    was this s default judgment due to your no show at the hearing?


    when and how did you find out about the judgement?

  3. #3
    Join Date
    Jan 2010
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    3

    Default Re: This Judgement Has "Vacate" Written All Over It

    Quote Quoting jk
    View Post
    a judgment has a 10 year statute of limitations and is renewable in California.

    was this s default judgment due to your no show at the hearing?


    when and how did you find out about the judgement?
    exactly. no show.

    i found out about the judgement when the collection agency mailed me about it.

    bummer about the statute of limitations. figured it was too good to be true.

  4. #4
    Join Date
    Sep 2005
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    Default Re: This Judgement Has "Vacate" Written All Over It

    Is your lawyer's novel more about charging you lots of money, or does he actually have a basis for what he's telling you? Read this.
    Quote Quoting California Code of Civil Procedure, Sec. 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.
    Was the lawyer suggesting that judgments have a four year limitations period?

  5. #5
    Join Date
    Jan 2010
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    3

    Default Re: This Judgement Has "Vacate" Written All Over It

    Quote Quoting Mr. Knowitall
    View Post
    Is your lawyer's novel more about charging you lots of money, or does he actually have a basis for what he's telling you? Read this.
    Was the lawyer suggesting that judgments have a four year limitations period?
    The lawyer's plan of attack is to file a motion to vacate simply to stall things up because we are shooting for June 2010 when the judgment would get tossed out. His whole case is based on this judgment being void at the four year mark.

  6. #6
    Join Date
    Jan 2006
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    38,867

    Default Re: This Judgement Has "Vacate" Written All Over It

    I think you need to look for another attorney.


    You did say all of this was in California, right? If the judgement is from another state, that state's SoL would apply and there are a couple states with quite short limitations on judgments.

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