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CalAttorney2
CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10236
Experience:  Civil litigation attorney for individuals and businesses.
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I filed a civil summons to recover a car that blogs to me

Customer Question

I filed a civil summons to recover a car that blogs to me that is secured collateral. The defender refuses to sign the note and refuses to pay the debt owed. Car was repossessed and is now titled to me alone.
Must the defendant appear or may an attorney appear on behalf of the defendant.
Submitted: 1 year ago.
Category: Legal
Expert:  CalAttorney2 replied 1 year ago.

The defendant can be represented by an attorney.

The only times that the actual defendant is compelled to appear is if they are deposed, subpoenaed, or post-judgment with a "debtor's exam" - in all of these the defendant may choose to be represented by counsel but they would have to appear.

Customer: replied 1 year ago.
If the defendant fails to appear but has an attorney present.....after the defender has been issued a civil summons to appear.....even though the attorney is present.....am I correct in saying that I am entitled to default judgement because the defender failed to appear in person?
Expert:  CalAttorney2 replied 1 year ago.

No.

A civil summons and complaint only requires the defendant to file an appearance - this can be done by an attorney.

If the court were to issue an order requiring a personal appearance by the defendant, that would be followed by sanctions, but you would not be entitled to a default judgment.

Customer: replied 1 year ago.
The summons is a "property recovery summons".......the summons has been served and states that she must appear.Just want to make sure that I have got this right.As long as an attorney appears for her, I can't get default judgement?This is what will happen.The defendant is shady. She will make an effort to hang on to the property (car) by having an atty appear and asking for the case to be dismissed. Then she would take be there to account for her defense or to give witness. If this is the case, even though her attorney is present, I think that I should be able to get default judgement.Your thoughts?
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

The attorney can appear. If the property isn't there the defendant is in contempt and is subject to sanctions (money damages).

(You continue to state that you are entitled to a default judgment - this is not how it works. You get sanctions against the defendant, not a default - a default judgment happens when the defendant fails to file a response to the complaint, not because they fail to show up to a hearing).

Depending on the severity of the conduct, courts do have the discretion to issue what are called "terminating sanctions" - where judgment is entered against the wrongdoing party - but this is an extreme measure and courts seldom do it, to get to this point you need more than one missed hearing.

Customer: replied 1 year ago.
I repossessed the car legally. The. The defendant stole the car from my driveway after it had been legally repossessed and reported as such to the local sherif and 911 call center. So she unlawfully and without permission took the car after all of that. I was already in the processes of having her name legally removed from the title. I didn't get the new title back until after she had taken the care from my driveway while I was gone one night... I have shown the police my new title. They won't go get my car. They say it is a civil issue.
Expert:  CalAttorney2 replied 1 year ago.

Have you added a cause of action for "conversion" (the civil equivalent of theft) to your current civil suit? That would give you a basis to recover punitive damages for her stealing the car back from you.

Customer: replied 1 year ago.
Thank you so much. I think that you just answered my question......
She is required to bring the car with her on that date.....if I understand it all correctly?If she fails to bring the car to that appearance or fails to appear at all (either way she has failed to bring the property), then she shall be held in contempt of court. Is that correct?Also, if she nor an atty appears then I should ask the judge for immediate default judgement?Is that correct?
Expert:  CalAttorney2 replied 1 year ago.

All the above is correct, EXCEPT: You are not asking for "Default Judgment" you are asking for "Terminating Sanctions" (see the post above for clarification on the difference procedurally - both result in a judgment in your favor).

Customer: replied 1 year ago.
I believe that conversion was added by the deputy clerk when I signed the summons. The deputy clerk pointed out that if she failed to bring the car or to appear then I would need to list the value so that I could recover those punitive damages in the former of money.
Expert:  CalAttorney2 replied 1 year ago.

Excellent. You should be well positioned then. Hopefully you get the car back quickly and you do not have to deal with it past that point, but if not, you already have the complaint set appropriately.

Customer: replied 1 year ago.
I will make a point of emphasis to ask for terminating sanctions in the matter if she fails to appear or to have an atty to appear.I felt like I was armed....but I am very well prepped and armed now.....
Expert:  CalAttorney2 replied 1 year ago.

I do wish you the best with this matter.

Thank you for using our forum, and please do not forget to rate my service so that I can receive credit for assisting you.

If you would like to direct future questions to me specifically, you can do so by starting your new question with "For William B. Esq." and a moderator will notify me.

Thank you again, and again I wish you the best.

Bill