Legal Question in Credit and Debt Law in California
Received notice in Sept that a creditor had filed for entry of default. I never received a summons so I requested the following from the court clerk:
1. The Summons
2. The Complaint
3. Proof of service for the summons
4. Proof of service for the complaint
5. Supporting documents for request for entry of default
I just received documents that indicate that the creditor took the appropriate steps in filing the case but did not take the appropriate steps in notifying me i.e. substituted service stating they served my roommate (I live alone and do not have a roommate) and they did not send or mail me copies of the summons left with "roommate".
I pulled up the case summary on the court website and looks like there is a hearing scheduled on 09/14/2015 at 08:30 AM 3.740 COLLECTIONS-DEFAULT JUDGMENT.
Since I was unaware I was served, do I contest for improper service or respond to the default judgement (if that's even an option, as it's been over 30 days as I was unaware of a case against me) or wait for the hearing? If I wait for the hearing, would I be able to defend my case (with represenation, of course)? Or would the hearing be simply process for awarding the default judgement due to my lack of response?
In hindsight, I should have seeked counsel when I received the notice in September but wasn't sure it was necessary as I was unaware of a case against me. I now want to be prepared, but curious about the recommended next step and how immediate action should be given that the next hearing is in 2015. Not looking to procrastinate but if I've missed milestones in defending myself, then I would take that time to save money for the default judgement if it is inevitable versus spending on counsel if the point is moot.
3 Answers from Attorneys
If you contest that you were served, you should file a motion to vacate the judgment laying out why the proof of service cannot be true. Creditor's do this kind of false filings all the time and your judge will probably be sympathetic.
How much is the debt? If it is substantial, hiring an attorney would be appropriate. If it is not much, you can probably call the creditor attorney and tell them that service was incorrect and that you intend to file a motion to vacate. Perhaps they will agree to vacate on their own if you can agree to a payment plan for the debt.
However, if the debt is old and they waited more than 4 years from the last time you acknowledged the debt, be careful talking to the creditor attorney. You may be able to successfully defend the debt on a statute of limitations claim.
If all of this sound confusing, hire a local consumer law attorney.
Yes you need to do soemthing and soon. The 2015 date is a control date for the court and the last date for the plaintiff to obtain the default. You need to file a motion to set aside the default and a proposed answer. If you do not do so the next thing you will receive is the notice of entry of judgment. Call our office for help or look for someone in your service area to work through this. NACA has some great attorneys that can help as well.
Good luck.
Mr. Simons is correct, that date pertains to a California Rules of Court rule that calls for dismissal of a collections case if a default has not been entered. Since they have filed a request for entry of default, that hearing will never happen unless they fail to submit a judgment for entry against you. That is just the latest in a series of mistakes you have made due to not understanding the law or civil procedure. You are up against, if not past, the deadline for filing a motion to vacate the default. You need to get off your computer and call a lawyer. If the amount in question doesn't warrant hiring one to handle the matter with you, you still obviously need to consult with one about what to do and how to do it before it is too late.
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