Legal Question in Credit and Debt Law in California

September 25, 2017

by Grenville Pridham

If you were never served, then judgment is void per Supreme Court cases, but you have to prove you were not served. How to defeat a default judgment:

1. Obtain copy of entire court file. “Entire” means just that; not the 1st document, or the last or a few in between. Usually you can obtain it in pdf format on a compact disc. You will have to pay for it, but usually default judgment cases have very few pages, so the cost is minimal. Pdf files are preferable to paper copies because your attorney can print the pages that he needs. But your attorney needs to be able to look at all documents and all pages.

2. Find proof of service. Note the address that is stated where service occurred. Note any other facts that are inaccurate.

3. Obtain proof that you did not reside at the address stated in the proof of service on the date that the complaint was left.

4. If the address was old, then your new lease or residential documents with the new address and dates will prove you did not live where complaint was served. The idea is to find documents with your correct address at the time that the complaint was served.

5. Obtain any other proof that you were not served. Only you will know what proof you have.

6. Write a chronological history about situation surrounding complaint, with facts about what complaint was about, where you resided and when, why and how you were not served, and when you learned about judgment.

7. The chronology is something that takes time and needs to be worked on over several days because a person usually does not remember everything the first time they sit down. Writing will trigger memories and clarify things that are not currently clear. You will need to review and keep writing several times before you know you have written down as much as you can remember. Success depends on how much proof you have to show that you did not reside at location where process server left complaint.

8. While writing the narrative for your attorney, this is not the time to fudge on facts or try to make things sound better. Just write the facts truthfully. I cannot tell you how many times clients have lied about facts that they thought were negative, only for me to later find out that they concealed the very fact that would have won their case. I also wish I did not have to deal with clients who misrepresent negative facts, because, much to my chagrin, the truth and lie inevitably are made public at the most embarrassing time for the client. If some fact is truly negative, it is better to inform your attorney so the attorney can pontificate over the best way to handle it. Usually “negative” facts can be dealt with if the attorney is advised about the situation.

9. In the unfortunate event that the “negative” fact involving a client is true, i.e., you were really served with the complaint, it is better to know that up front because the attorney can then provide you with the best advice on how to resolve or deal with the situation. In these cases, if a client was really served with a complaint, the plaintiffs will almost always have irrefutable proof, so lying will not help.

10. The attorney will determine if there is evidence that you were not served. If there is enough evidence, the attorney will then file a motion to vacate the default judgment.

11. I have never lost a motion to vacate a judgment when there is proof that the defendant did not reside at the address listed on the proof of service.

12. If by chance, service is deemed valid, then the attorney will need to determine if judgment was timely and properly renewed. That would be your next line of attack.

13. Do not make any payments toward judgment because that will inevitably be held against you.