This question is for Maverick. Continuing with our case of the evictee's counterclaim that was never served to us, new developments happened today. Apparently, the tenant who got the default judgment has acted very quickly and managed to have our bank account at Wells Fargo frozen. Question now is, do we file a motion to vacate, as you suggest, or file a notice of appeal? The clerk of court said we have 20 days from the judgment date of May 23 to appeal, which means a June 12 deadline (which is this Sunday). The tenant, however, whom we visited this afternoon to see about getting her to settle, countered that we had only 10 days to appeal and that time was up. Which is correct? How do we go about filing a motion to vacate, which is what we would prefer? Reading the procedure for proper service again and again we think our best argument is as follows, whether it is for an appeal or a motion to vacate: the tenant, or litigant is supposed to be the entity making service, not the clerk of court. Only if our address was not known, would it be okay to leave the document with the clerk of court (presumably for forwarding to us). She, the tenant herself, was supposed to serve us. She was supposed to do so as described below in 1.442(2):
Service shall be made by delivering, mailing, or transmitting
by fax (facsimile) a copy to the attorney or to the
party at the attorney’s or party’s last known address or, if
no address is known, by leaving it with the clerk of court.
Delivery within this rule means: handing it to the attorney
or to the party; leaving it at the attorney’s or party’s
office; or, if the office is closed or the person to be served
has no office, leaving it at the attorney’s or party’s dwelling
house or usual place of abode with some person of
suitable age and discretion residing therein. Service by
mail is complete upon mailing.
She of course knew our address-- it was in the papers served her for the eviction
and in the money judgment action as well. She did not serve us in any manner. The rule says SHE was supposed to. She simply filed her answer and counterclaim with the clerk of court, who supposedly mailed us a copy (that we never received). Okay, if this is all we've got, it sounds pathetic, but there's a detail that might be relevant.
In the weeks leading up to the money judgment hearing, we spoke with the tenant three or four times on the phone, the last time just days before the scheduled court date. We hinted to her that we may not appear for the money judgment because we appreciated the fact that she had moved out of the house voluntarily (although after the FED, so it wasn't really voluntary) and she in effect could just walk away from her rent obligation (if we did not appear). This will probably make the judge's jaw drop, but there is an electronic record (email) of this sentiment on our part. We emailed a notice to our property manager for posting on her door after the FED, when she was in the process of moving out. Part of the notice, which was sent as an attachment to the email, reads:
"On a personal note, you were given a break when we didn't appear in court for your eviction hearing, resulting in the action's dismissal and giving you the chance to walk away from your rent delinquency without an eviction record in exchange for vacating the house voluntarily."
Yes you read that right. WE ALSO DID NOT appear for the eviction hearing. Setting aside an explanation for that for the moment, the above notice was posted on her door by our property manager, days before the money judgment court date. There was not a peep from her about her counterclaim. She knew we didn't appear for the eviction hearing, which was dismissed. But because she started the process of moving anyway, we were grateful. We were sort of rewarding her by hinting to her that we may not appear again for the money judgment as well, allowing it to also be dismissed, and that's that. We were being the good guys. In this entire atmosphere, not once did she hint that there was a counterclaim. Will this, assuming it is believed in court, help?
There is an electronic record of the email, the date it was sent, and testimony from the property manager that such notice (which was an attachment to the email) containing that language was posted on the tenant's door before the money judgment hearing.
If we had attended the eviction hearing, would we have learned of the counterclaim? Maybe, maybe not. We didn't attend the eviction hearing because the process server failed to inform us of the court date for it. As unbelievable as this entire saga is, it is all true. (There was a new employee at the process server office who didn't return my repeated phone calls for the court date. I was still calling her a week after the court date, when I finally learned the FED was dismissed.)
Please advise: appeal or vacate motion? How to do each? What's the difference between the two? Do we have a chance?