Legal Question in Civil Litigation in California
I received a "Request for Default of Judgment" on 8/6/12 and also first learned that my brother-in-law has filed a lawsuit against me about the personal injury which I never beat him. He was having a fight with another guy and I tried to pull him out of the fight. At that point, I searched and discovered from the court website that he had filed the Summon and Complaint on 6/8/12 and the Proof of Service showed the paper served by personal service to me on 6/19/12 at 5:35pm; however, I never got serve the paper and I was at work on that day and have proof that I was at work. It was not served me properly. I also learned that my brother-in-law had filed a chapter 7 bankruptcy on 7/30/10 and did not state this lawsuit in his bankruptcy filing. Can he still file a lawsuit against me? I am concerned about the "default of Judgment" filed with the court on 8/1/12 in this lawsuit. Do I need an attorney to defend this lawsuit and file some document ASAP to set aside the "Default of Judgment"? or Should I let his attorney know that he had violated the law regarding his bankruptcy case and request his attorney to file the "Request for Dismissal" for this lawsuit? Please advice
3 Answers from Attorneys
You need to take steps to protect your rights. A Motion to Set Aside the Default and action in the Bankruptcy Court. And you need to take acton right away.
I agree with Mr. Selik.
Note that a default and a default judgment are not the same thing. If your brother-in-law is seeking a default judgment (and if he knows what he is doing), then he must have already taken your default.
You need to bring a motion to set aside the default. If the judgment has been entered (which is relatively likely after almost a month) then you will need to ask the court to set that aside too.
You are allowed to do this on your own, but if you mess up and your motion fails you will not get a second chance. You should get a lawyer to help you if at all possible.
Good luck.
If you can't get agreement from the plaintiff to set aside the default and allow your answer, you will have to file a motion to do so. If you don't know how to represent yourself effectively against an experienced attorney intending to get a judgment against you, then hire an attorney who does. If serious about hiring counsel to help in this, and if the case is in SoCal courts, feel free to contact me.
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