Consumer Protection Law
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Hi! LegalGems here. I'll do my best to assist you.I can only provide general information, so a follow up consult with a private lawyer is recommended. Was there a judgment rendered in this case for the judgment creditor?
yes there was, my bank gave me a copy of the court paper.
So it was a default judgment?
i.e. You didn't show up at the hearing?
I believe it was, no I did not show up at the hearing, I didn't even know I had a court day.
That's what I assumed. It sounds like they did not properly serve you. You can file a Motion to Vacate Default Judgment based on failure to properly serve, and also based on the statute of limitations issue. You mention you are in California. What county?
Ok. You would want to go to the self-help facilitator there, unless you plan on hiring an attorney. Just a moment please, I'll get you a template for the motion. The facilitator will be able to help you fill it out specific to your situation. You also want to see what type (if any) of proof of service is on file.
The above is for small claims.
Here is the one for regular civil: http://www.courts.ca.gov/partners/documents/blankn.o.m.6months.pdf
The second one- you would change it and discuss the facts relevant to your case,not the 473 issue as it states - this is just a template.
is this going to help me stop this collection and get my money back?
Yes, the only way to stop it is to vacate the existing judgment. Until that time, the judgment creditor has a legal claim to your money.
ok thank so much for your help.
You are welcome. Good luck on this - and just so you know, some creditors purposely mess up the service of process so they can get a default judgment; so that is likely what happened here. That is why the courts have a way to overturn such judgments. (i.e. vacate).
thanks so much, great info. and advice.
You are welcome. Glad to have helped!
hello again LegalGems, today I contacted the debt collector and, I let him know that I talked to a consumer attorney about my situation and I told him that I was advised to file a motion to vacate default judgment based on failure to properly serve me with court papers (date) and I asked him to please send me copy of the court paper and proof of when I was served and what address they used to served me because I never received any court date or papers. he got upset and told me he can only send me a copy of the court ruling, then said have a good day and hung up on me. rude person.
on Monday the 18th of November I will be going to court to file the motion to vacate form, in the mean time is it wise to call back the debt collector and ask him to release the hold on my bank account (the little money I have to pay bills) and would they do it? or would they keep that money ($1,300) until we go to court? thanks so much. Victor M.
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