Legal Question in Civil Litigation in California

My creditor won default judgement in April 2009. Recently learned from my neighbor that they filed the suit somewhat fraudently because I was'nt served properly (received summon in regular mail) and the suit filed and won in L.A county court instead of San diego county which I have been residing and doing business (this judgement was for commercial account).

Could above reasons be the basis for filing a motion to vacate default judgement ?

If so, stll possible to file or been too late ?

Your reply will lead me to consider to hire a lawyer. Thanks so much in advance.

Ranges of attorney fees for taking care of this case ? (I understand it depeds on many factors,but needs some estimate before contacting a lawyer.)


Asked on 5/09/10, 2:36 pm

1 Answer from Attorneys

Anthony Roach Law Office of Anthony A. Roach

A motion to vacate a judgment based on your mistake, inadvertence, surprise, or excusable neglect must be made within six (6) months. This must be made within six (6) months of the clerk's entry of your default, NOT the entry of the actual judgment. So you are late on this ground.

If you had an attorney, and it was his fault that you did not timely answer, the six (6) month period would run from the date of the entry of judgment. You did not have an attorney, and even if you did, it would be too late for this ground.

If you didn't get served at all, you could file a motion to set aside by showing lack of notice of the proceedings. Such a motion is filed within 2 years of the default judgment or 180 days after service of a written notice that the default judgment was entered, whichever is earlier. (Code of Civ. Proc, sec. 473.5 subd. (a).) This doesn't apply to you, because you were obviously served via substituted service, and received a copy in the mail. You just ignored it, which was a really bad idea.

Your neighbor, who I shall refer to as the "sea lawyer" is mixed up on his legal advice. When the sea lawyer referred to filing in the wrong court, based on the county where you live, he was referring to venue. You could have challenged venue, but you defaulted. A motion to change venue on the grounds that the venue selected by the plaintiff was the wrong venue must be made before or at the time of answering. (Code of Civ. Proc., sec. 396b.) Filing in the wrong courthouse is not grounds to set aside a default in a case that you received summons in the mail.

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Answered on 5/14/10, 2:59 pm


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