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LegalKnowledge
LegalKnowledge, Attorney
Category: Legal
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Experience:  7+ years handling Legal, Real Estate, Criminal Law, Family Law, Traffic matters.
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I just got a letter for a default judgement. I am guessing

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I just got a letter for a default judgement. I am guessing it was filed when I didn't show up for a court date. But the court date on my summons are for May, 2014. How can I be in trouble for not showing up for a court date that hasn't happened yet?
Submitted: 1 year ago.
Category: Legal
Expert:  LegalKnowledge replied 1 year ago.
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good morning. I certainly understand the situation and your concern. When a defendant fails to file a written Answer with the court, the court will issue a judgment against the defendant. A judgment issued under those circumstances is known as a default judgment. The court usually awards the plaintiff the amount demanded in the complaint, plus interest and court costs. There are two main reasons that a court will vacate a default judgment: (1) excusable default and (2) lack of personal jurisdiction. These reasons are explained below.

Excusable Default Excusable default is the most common reason for vacating a default judgment. It has two parts: (1) a reasonable excuse for not filing an Answer within the 30 day time; and (2) a meritorious defense (a good defense). There is a time limit for moving to vacate a judgment because of excusable default – 180 days from the entry of the Judgment. (If you were never served with a Notice of Entry of the Judgment, the time limit is extended to 2 years.)

Common examples of a reasonable excuse: The most common example of a reasonable excuse is that you did not receive the Summons. Other reasonable excuses are that at the time you received the Summons you were out of town, ill, incarcerated, or that you could not answer the Summons for some other good reason. You would also have a reasonable excuse if, in response to the Summons, you telephoned the attorneys for the plaintiff and they told you not to bother filing an Answer.

Sometimes people do not respond to the Summons because they do not understand what it is. This is not normally considered to be a reasonable excuse; however, some judges will accept it.

Common examples of a meritorious defense: A defense is a reason why you don't owe the money, not a reason why you can't pay. For example, you would like to use the defense of identity theft or statute of limitations. For a list of possible defenses, see Common Defenses to Debt Collection Lawsuits. You can also simply dispute the amount of the debt. Disputing the amount of the debt, combined with improper service, is a sufficient (and very common) reason for the court to grant an order vacating the default judgment.

Lack of Personal Jurisdiction (Improper Service) The court can also vacate a default judgment if you were not properly served with a Summons. There are advantages and disadvantages to trying to vacate a judgment on the grounds of improper service. The main advantage is that there is no time limit for seeking to vacate a judgment on the grounds of lack of jurisdiction. Also, if you seek to vacate a judgment because of improper service, you do not need to cite a meritorious defense (or any defense). The disadvantage of seeking to vacate a judgment on the grounds of improper service is that you have the burden of proving the bad service, which you must do at a hearing before the judge. Proving improper service can be difficult depending on the facts of your case.

In addition, here is a link to the forms which you may need and the steps to take, as well.

http://www.courts.ca.gov/12726.htm

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LegalKnowledge, Attorney
Category: Legal
Satisfied Customers: 16508
Experience: 7+ years handling Legal, Real Estate, Criminal Law, Family Law, Traffic matters.
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Expert:  LegalKnowledge replied 1 year ago.
Hi Amy. I just wanted to follow up and see if you had any other questions or needed me to clarify something. I am here to help, so please let me know. Thanks!
Customer: replied 1 year ago.

The person who served the summons actually handed it to my partner, not me, but it was at the correct address. They also followed up with a letter that had a copy of the summons, so that is not a reason for them to vacate the judgement.


 


I was confused at to the date, please see attached file, and finally realized that the court date was for 2014, and not on a Sunday 5May of 2013. My misunderstanding was that I had until then to reply to the summons.


 


I was actually out of town and out of the country for almost all of May, and I can prove that with hotel room receipts and airline ticket stubs, so would that be an acceptable reason to clear the default judgement?


 


I am planning on paying off the debt and trying to get reimbursed by my insurance company because I don't want this showing up on my credit report.


 


Do you think my being out of town for work is a good reason to file an Excusable Default or should I suck up to the attorney and try and get him to agree to clear it after the debt is paid?


 


I work in an FDA regulated industry, and if you are going to make alterations to documents, especially OFFICIAL documents, you have to single line through the mistake, initial and date the line through, then clearly write the correction either above or below the mistake. Since either the lawyer or the clerk did neither thing, the date is confusing.


 


Edit: Ok, I can't attach the scanned document to this reply without getting a 'you don't have permission' error'. Is there another way I can let you see the document?

Expert:  LegalKnowledge replied 1 year ago.
I think if you were out of the country and did not receive notice until you return, at which point the default was already entered, then you could have a legal basis to vacate it. When you file the motion, you certainly want to attach evidence to support your claim, showing you were out of the country, did not get a chance to read it and it was served on your partner, not you. As such, once you returned and realized what happened, you sought to have it vacated at once. Moreover, if you are going to settle this and pay it off, you can ask that the plaintiff dismiss the case as well, vacating anything that has been entered.
LegalKnowledge, Attorney
Category: Legal
Satisfied Customers: 16508
Experience: 7+ years handling Legal, Real Estate, Criminal Law, Family Law, Traffic matters.
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