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Dave Kennett
Dave Kennett, Lawyer (JD)
Category: Legal
Satisfied Customers: 27686
Experience:  25 years experience in general law, including real estate, criminal, traffic, and domestic relations
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Received a summons for collecting credit card debt from Citibank,

Resolved Question:

Received a summons for collecting credit card debt from Citibank, under $10K, so no court appearance necessary for default judgment. Summons was issued from San Mateo County Superior Court. I live in Marin County. My boyfriend used to live in SM County, is a cosigner on the card, but I am the defendant who was served.

Question: Do I need to answer? If Citibank files a default judgment, won't it be thrown out because I don't live (and never did live) in the jurisdiction where the summons comes out of? If I do have to answer, what should I file? Motion to dismiss, general denial, demurrer? Would prefer not to pay unnecessary filing fee. Don't want to contact Citibank to settle because have no money. Afraid of wage garnishment.
Submitted: 5 years ago.
Category: Legal
Expert:  Dave Kennett replied 5 years ago.

DearCustomer- You definitely need to file a response since if a default judgment is issued it will not be "thrown out" because of improper venue. That is a defense you have but you must assert it in a responsive pleading. You can file either an answer or a motion to dismiss based on improper venue. The motion to dismiss is easier to prepare simply because all you have to say is "Defendant moves the court to dismiss this cause of action due to improper venue. The complaint was file in San Mateo County and Defendant does not reside in that county or at that at address."

 

You need to sign the motion and file it with the court and send a copy to the attorney for Citibank.

 

Dave Kennett

Customer: replied 5 years ago.

Dave:

 

Thanks for your answer. I have some follow up questions.

 

1. Since more than 30 days has past, will the Motion to Dismiss still be acceptable? What if the Plaintiff has already filed a default judgment?

 

2. I haven't checked cost of a Motion to Dismiss filing fee in San Mateo County. Do these usually cost a lot? For example, Bankruptcy filings and General Denial filings around here are $200.

 

3. If I file, it's like admitting that I was served. In fact, it was a substitute serve on my boyfriend who answered the door, but did not even affirm his identity. Can I argue for improper service in the Motion to Dismiss?

Expert:  Dave Kennett replied 5 years ago.

If they have filed for default it is too late for the motion to dismiss. You would have to file a motion to vacate the judgment and show why you did not answer in the prescribed amount of time and that you have a reasonable defense to the cause of action.

 

Responsive pleadings cost little if anything since they are not an initial filing,. You can contact the clerk of courts to see what the charge, if any, may be.

 

You can argue venue, improper service and failure to name a necessary party if your boyfriend was also on the debt.

 

Dave

Customer: replied 5 years ago.

How can I find out if Plaintiff has filed default? If I call the clerk, would they know? So as long as I file an answer before they file a default, I'm OK, even though the 30 days has past?

 

Boyfriend was on debt, but if they name him, he is already in Bankruptcy (Ch. 13), and has no income. So that makes it meaningless, because they could only garnish my wages?

 

I'm told it takes months for a creditor to garnish - they have to go through hoops. True?

Would they even bother as this is under $10K?

 

We are buying time, as may do a Bankruptcy, but that's $2,500 flat, up-front.

Expert:  Dave Kennett replied 5 years ago.

The clerk would know or you can go on line and check the court records to see if anything has been filed. They would be required to send you a copy. The 30 days doesn't matter so long as you file your response before they file for default.

 

I agree that your boyfriend will probably be exempt but if he failed to list this debt in his Chapter 13 it at least creates a diversion for the case even though ultimately he couldn't pay the debt.

 

I can't tell you how long it will take for anyone to start garnishment proceedings. Once they have a judgment they can start. Yes, they would bother for under $10,000.

 

Dave

Dave Kennett, Lawyer (JD)
Category: Legal
Satisfied Customers: 27686
Experience: 25 years experience in general law, including real estate, criminal, traffic, and domestic relations
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