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Ask CalAttorney2 Your Own Question
CalAttorney2
CalAttorney2, Attorney
Category: Landlord-Tenant
Satisfied Customers: 10237
Experience:  I am a civil litigation attorney with experience representing both landlords and tenants in residential and commercial property disputes.
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Hope you are doing well. I moved into a rental house in

Customer Question

Hello, hope you are doing well. I moved into a rental house in May/2013 and signed a lease until 4/30/2014. Due to the house not being maintained after 4 months of requests, i only paid till Feb 2014 and moved out in Feb 2014 The landlord did not pay back
my deposit The landlord filed a small claims case against me in San Diego I was out of the country from June 2014 to December 2014 Landlord claims too have served me in November 2014 Court hearing was in March 12,2015 I sent a declaration to the court which
the court received before the hearing on 3/9/2015. I wrote that I was not served. And since I don't live in California, so i am not under court's jurosdiction The court still ruled against me Then I sent sc-135 motion to vacate with the same reason I could
not attend the motion to vacate hearing on 7/13/2015 as I am outside the country The court dismissed my motion to vacate I don't understand why the court is not considering my motion to vacate as I was not served I cannot go to San Diego to attend the hearing
Now the landlord sent me a message that he will use collection agency against me Questions : (1) what papers can I send to the court to get the case dismissed as I was not served and I am outside the jurisdiction (2) if landlord sends a collection agency after
me,, would I have to pay collection agency fees on top of the judgement
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  Phillips Esq. replied 1 year ago.
I am tied up with another case.
So, I will opt out and let another Attorney assist you
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer, I am sorry to learn of this situation.

I believe that you have a misunderstanding as to what the jurisdictional rules are for small claims. If you rented a property in San Diego, the landlord can sue you in San Diego for a breach of the lease. This is true whether you are still in the state of California at the time of suit or not. The court retains personal jurisdiction over you because the property, the contract, and the alleged actions all took place in San Diego - therefore jurisdiction is appropriate.

If there was a problem with service (meaning the landlord actually did not serve you with the summons and complaint), then you could have attacked that at the time. However, it is going to be too late to do that at this time.

While it is likely you could have prevailed in a motion to set aside (or vacate) the default judgment when you originally filed it for the hearing in July, filing a second one may or may not be successful. However, if you do not appear in court on your hearing date (or get permission from the court to appear by telephone (some departments permit this, but not all)), you will lose again.

The motion to vacate (if successful) will only allow you to file an answer to the complaint and then defend the summons and complaint, it does not defeat your landlord's claims.

Currently, your landlord does have a right to enforce their judgment via wage garnishment, bank levies, and liens on your personal and real property. You can try to settle with them (I am including some general information regarding debt negotiations for your review), but if you do settle, make sure to get everything in writing.

  • When trying to settle a debt, creditors generally prefer lump sums over payment plans. They are often willing to accept an amount less than the full debt (the trade off is that they get a quick payment and don't have to worry about ongoing collection costs or administration). If you do not have the ability to offer a lump sum for something the creditor will accept (some will accept a small portion, while others want close to the full amount), you can try a payment plan, these are less satisfactory to the creditor (especially if they have a lien on your property already), but if you are willing to offer something with a reasonable chance to get the creditor a large amount of their debt back, you are likely to get them to accept it.
  • Whenever working with a creditor, make sure that you keep your communications in writing (if you speak to someone by phone, promptly send a confirmation letter to summarize your conversation), as this will help to ensure that there is no confusion later on, and you will be able to enforce your settlement against any future collection efforts.