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LegalGems
LegalGems, Lawyer
Category: Consumer Protection Law
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I have a judgement of default coming up next month on a

Customer Question

I have a judgement of default coming up next month on a Discover card balance. Is there anything I can do at this point?
Submitted: 10 months ago.
Category: Consumer Protection Law
Expert:  LegalGems replied 10 months ago.

The default has not been entered, correct? The plaintiff is now requesting it?

Expert:  LegalGems replied 10 months ago.

Was an answer ever filed? or is that the basis for the default request?

Customer: replied 10 months ago.
I did not file an answer. The papers also state I was served through personal service when in fact the process server handed them to a houseguest who left them on a table.
Customer: replied 10 months ago.
Part of the problem is that the papers are unprofessional looking. One that I just got has someone else 's name and address crossed out and mine written in! In addition, the papers were filed but the court sanctioned the law group for not serving me. I think this is actually time barred, but since I did not respond they will get the default judgment.
Expert:  LegalGems replied 10 months ago.

If the papers were left with a third party, that is only effective as substituted service, which can only be done after several unsuccessful attempts at service.

Please see: http://www.courts.ca.gov/selfhelp-serving.htm

It also requires the plaintiff mailing the papers, and then completing an affidavit of due diligence.

So if the service is defective, the default request can be challenged based on that.

The court will generally vacate (or refuse to enter) a default judgment if there is excusable neglect re: failure to answer within the 30 day time frame (40 if via substituted service). This would include examples such as: illness, non-receipt of summons prior to the hearing; misrepresentations made by plaintiff that an answer need not be filed (for example, if made during negotiations).

If the proof of service does not state substituted service, that can be challenged: http://www.courts.ca.gov/1322.htm

Discussion here: (public policy concerns): http://www.lao.ca.gov/reports/2014/criminal-justice/default-prove-up/default-prove-up-process-071814.pdf

Because default proceedings are procedurally complicated, at this point it is best to retain an attorney, as defeating the prove up hearing for default is generally less expensive (not to mention less time consuming/stressful) than vacating a default judgment after it is entered.

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Expert:  LegalGems replied 10 months ago.

I just saw your last post;

If the default is denied due to deficient service, then the statute of limitations can be brought as an affirmative defense when the case is heard on its merits.

Customer: replied 10 months ago.
Is it to late, since the 30 days ( or 40 w/ ss), to answer?
Expert:  LegalGems replied 10 months ago.

The clock starts running from the time of proper service- if there is no proper service, the clock does not start running. That is why it is important to challenge the default based on improper service.

Here is a link to locate an attorney:
http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm

Should you have further questions please post here to continue our dialogue. Otherwise,

kindly rate positively

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