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Question

I just received in the mail a judgment and a request for a lean against me from Wells Fargo Bank. I received misc. letters but have never been served a summons. Can I file a motion to have judgment set asside? If so, what do I need to file, what is needed in the document, Is there a form to use?

Submitted: 278 days and 6 hours ago.
Category: Legal
Value: $15
Status: CLOSED
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Optional Information

sonoma county, California

Already Tried:
I contacted the Civil Courts department and was told they thought I needed to file a motion and get a hearing. They looked in the file and says it claims I was served on Oct 30th. I live in Colorado and was never served. Is there other alternatives?

Posted by LawTalk 278 days and 5 hours ago.

Answer

Good afternoon,

In order to obtain a default judgment, the bank would have had to have shown some documentation indicating that service had been effected.

Absolutely, you should file a Motion to Set Aside the Judgment for failure of service. You should go to the court, pull the file and see what sort of return of service document was filed to indicate proper service. It could have been served on the wrong address, the wrong person or someone could have simply lied about the service having been accomplished.

The motion, while fairly straight forward, is better suited to be prepared by an attorney. If you must do it on your own, go to the county law library where you live and look in the set of books known as Law and Motion. The librarian will be able to help you. The law and motion set will have a format you can use, as well as suggest what types of allegations you will need to set forth, and prove, to win your motion.

I wish you the very best in your search for justice.

Thank you very much for having allowed me to assist you. It would be greatly appreciated if you would click the green Accept icon so that I can receive credit for having assisted you.

Best regards,

Doug

278 days and 5 hours ago.

Reply

I live in Colorado the case is in California. Are the law and motion books at the liabrary in CO okay to use? I don't have access to the file to see what they claim was filed showing proof of service. Is that a problem?

Posted by LawTalk 278 days and 5 hours ago.

Answer

Good afternoon,

Unfortunately, the law books in Colorado will probably be just different enough that they won't be useful.

Additionally, someone will have to make an appearance at the Motion when it is heard in court.

Realistically, You either are going to have to retain an attorney in California to look into the matter for you--or you need to travel there to deal with all of this. The California courts are very generous with vacating default judgments, but you will have to put effort, and likely some money, forth to get to that point.

If you are near to a Law School, it is possible that they might have the Law and Motion books for California. That is my only other suggestion as far as you obtaining help locally.

I wish you the best.

Thank you very much for having allowed me to assist you. It would be greatly appreciated if you would click the green Accept icon so that I can receive credit for having assisted you.

Best regards,

Doug

278 days and 5 hours ago.

Reply

If I am granted the motion can they refile and start over? Can I request to be available on the phone rather then having to go to Ca? Any other thoughts on how I can figure out how to prepare a motion? Are they strict on how they are written and/or is there info that has to be included. Is there something on the web I could fill in my info but use as a template? You have been great thank you!!!!

Accepted Answer

Good afternoon,

If you are granted the motion to vacate the judgment, yes, they will simply start the process anew.

It is a very rare instance when the court allows you to appear by phone. Don't expect that accommodation.

You won't likely find the template for the motion on the web.

If you don't fully meet the court's requirements relative to service, filing and preparation of the motion your motion will be denied, I'm afraid.

Thank you very much for having allowed me to assist you. It would be greatly appreciated if you would click the green Accept icon so that I can receive credit for having assisted you.

Best regards,

Doug

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Expert: LawTalk
Pos. Feedback: 99.1 %
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Answered: 2/17/2009

Attorney

I am a practicing attorney with more than 25 years of experience in the legal field.

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