I just learned of an involuntary real property lien against me, by court-recorder letter 12 days ago. Checked my case-summary online and found out that CA Midland Funding got a court-clerk default judgment ($2950) on me in 12-06-10. This debt was way past the SOL when Midland Funding initiated the Lawsuit. I never did any of the wise things that are mentioned in this forum to deal with and perhaps stop such an initial lawsuit (such as DV letter and answer summons). In fact, I never even kept myself abreast of the progression of the case. I was and remain in very poor health ( I am a disabled senior citizen with gout, diabetes, brain tumor). And found it difficult to muster the mental and physical strength to deal with what I deemed to be a frivolous lawsuit. I would like to get the judgment vacated for two main reasons for court to consider. They are: (1)debt past SOL (2)I am Judgment-Proof;i.e.,income is soc.sec.disab...and no valuable assets). I went down to court-house and asked for the necessary forms to file in order to get this judgment vacated. I was given just 2 pieces of pleading paper with no instructions. Why 2 pieces of pleading paper? Is it for filing 2 seperate things, or just extra paper? I live in Los Angeles, CA. I can not afford a lawyer, nor would it be cost-wise considering the amount of judgment. However, I do need and would appreciate any help on proper filling and filing of necessary forms. I need step by step and line by line on what to do. And finally, is it too late to file motion to vacate judgment (via California rules), even though just learning of lien/judgment?
I'm not a lawyer, but it sounds to me like you should first make sure you're 100% positive the SOL expired. Start by finding out the date the suit was actually filed, because it's possible the CA filed within the SOL and the judgment was handed down after. If you're 100% sure the SOL had expired before the suit was ever filed, then you can certainly file a motion to vacate on those grounds.
Waaaay past the SOL? When did you last pay? What are the rules in CA? Those things will stop nothing. Dumb Bob is sorry for your situation, of course, but the courts don't care, they don't. The judge might care because he or she is human and good at heart but the court is a system and it doesn't care. You could be a sick person or a person seeking to take the system for a ride, no difference. Dumb Bob thinks that the first reason is something to maybe look into. The fact that you can't pay (for any reason) is irrelevant. You should be so lucky to get anything, in many places, the response will be that they can't help you at all. Giving you some paper is "helping" you, in their estimation. ALL judgments are scary and matter because they go on and on, for maybe 20 years, and they have INTEREST tacked on to them. The law precludes this so you are left with Dumb Bob's usual snarky replies.
Yes, I am sure about the suit being actually filed past the SOL. And now I know it is not too late to file motion to vacate judgment. In California, under rule ccp 473.5 (where defendant was notified of or learned of judgement), he/she has up to two years to to file motion to vacate judgment. So, now I need to know how to fill out the two pleading paper forms I received from the court. And additionally, is there anything else that may be mandated. I tried looking for examples of filled out 'Motion To Vacate Judgment' forms for California on the internet. However, no such examples could be found. I have solid reasons for the motion to be granted. In fact, on the SOL alone it should be granted. Because a SOL debt is not sanctioned by the court; making the judgment void. So I do not want to blow it by submitting an improperly filled out pleading form, or by not including other pleas, motions, forms, etc., that have to be submitted with 'Motion To Vacate'. Thus, my question on why was I given two 28 lines of pleading form; was it for extra space for the same form or for anothing something to be submitted. If someone can instruct me on how to properly fill out the necessary form(s) (particularly 'Motion To Vacate') it would be greatly appreciated.
Regarding your very last statement...whaaaat???? Please elaborate. If this kind of help can not be done in a public forum, then certainly there are no restrictions on it being done privately. And if you can help we can communicate via email.
Hi rawbl Ok couple things: 1. You are asking a public credit talk/repair forum board for a step by step and line by line instruction on how to file a motion that will be submitted to a civil court â?? be careful of what you ask for, last time I checked I did not go to law school I just have the power of Google and Bing behind me not a diploma. 2. You started this tread with your argument/reason for submitting the motion to vacate as debt is past the SOL and you believe yourself to be judgment proof. a. Clearly you are not judgment proof as Midland was able to secure a lien against a property in your name. b. A plaintiff could have up to 180 days to serve a defendant a summons and complaint â?? in theory Midland could have file as early as June of 2010 are you 100% sure that SOL date is before the date Midland filed? C. In your second posting you now want to file the motion to vacate under California Code of Civil Procedure 473.5 ~ BUT that section is Service of Summons Too Late to Defend Action. TIME FOR FILING Different time limitations apply depending on the ground(s) you will be claiming. Motions must be filed: ◦Within 6 months after entry of default on grounds of mistake, inadvertence, surprise or excusable neglect ◦Within 2 years of the default judgment if service did not result in actual notice in time to defend ◦Within 180 days if you are served notice of the entry of default judgment, but had no actual notice in time to defend the original case ◦At any time after a void judgment is granted, if the motion is made within a reasonable time. For a default judgment, this may be a reasonable time after the discovery of the existence of the judgment or order. You admitted you knew Midland Funding initiated the lawsuit, you did not pursue the SOL to know about the lawsuit would mean you receive the summons and choose to ignore it as you deemed it to be a frivolous. If you still plan to file your motion to vacate I would form a plan first: 1. Gather all statements and correspondence with both the OC and Midland regarding the account in question. Double check, triple check your dates. 2. Find that summons and complaint most courts require the plaintiff to file proof of claim with the complaint in order to win the summons, what does the court papers say? If you donâ??t have a copy go down to the court house and order them, order the whole file (case) it will have the S&P, proof of service, request and ordering of the default judgment, and wit of execute for the lien of the property. 4. If you find that you have undisputed proof of SOL up prior to filing, then file that motion. This comes from the Sacramento County Public Law Library but itâ??s a good place to start: Relief from Defaults 5. Be prepared to answer why it is you did not show up with this evidence back when you were served. Good luck with everything.
Thanks Desdemona You gave me a lot to chew on. I'll try to sort and understand as much as I can to familiarize myself with the proper pleading form for court acceptance. I was just hoping that someone in this forum had experience in constructing a successful 'Motion To Vacate Judgment'. And thus give me a quick run thru from start (and specifically the embodiment of the pleading form) to finish (filing motion). As far as samples from the library; if I am not mistaken, this involves a lot of mobility to get down to library to view them. I am disabled and quite ill. Going to the library (and perhaps going many times) may not be feasable. In reading all of ccp 473, it seems to me that I have two strong ligitimate causes for motion to vacate judgment. (1) excusable negligence; to ill to respond or appear hearing. (2) Judgment was a void judgment; past the SOL (last payment on debt was 2002...Midland's summons/complaint actually filed in 5-30-08). I probably can not use the 'was not properly served' reason (even though did not see server or sign...summons left on doorstep or mailbox (too long ago to remember)). Because that reason entails actual notice. And as you pointed out, since I was aware it , this constitutes actual notice. However, I only learned (via court-recorder-notice) of the Default Judgment a couple of weeks ago. And this is what my motion (seeking relief from) presently is about. Just maybe I can also use that too. I do not have any paper work from OC. I discarded all those papers a while back. I probably could contact the OC and try to get the pertinent info. However, since Midland (and there may have been other buyers before them) bought the debt, they will probably give Midland's contact number to me. I got last payment activity on debt via credit report. This credit report coincides with what I believe to be accurate. Even though I did not put up my first line of defense (DV letter, answer summons, and other intiatives), I hate to have Midland win this on default using unscrupulous/fraudulant maneuvers. Just a thought: What about contacting Midland and offering a settlement (say 25%) of Default Judgment amount in lieu of bringing a 'Motion To Vacate Judgment' to court based on voidable Judgment? Or would this contact be like having the shark smell blood? Good idea, bad idea...or just too late at this point. Again, allow me to reiterate my initial cry for help. If anyone can help me with the pleading form, it woud save me a lot of time and grief and be greatly appreciated. And I'll just submit that to clerk and hope that it is enough to file the motion and not be rejected by clerk or dismissed by court.
HI rawbl Just to clarify the default judgment was entered 12.6.2010 and you learned for the property lien around 9.19.2011, but summons/complaint was filed 5.30.2008. The timeframe between filing and judgment does not add up. I know that courts are backed up but 31 months is unheard of. Are you sure that filing date wasnâ??t 5.30.2010? Not sure if the Excusable Neglect (CCP 473(b)) will work: To be excusable, the neglect must have been the act or omission of a reasonably prudent person under the circumstances. Forgetting about the lawsuit, being too busy to properly respond, or being unable to afford an attorney are not grounds for excusable neglect. Examples of excusable neglect include: Illness that disables the party from responding or appearing in court Failure to respond because you relied on your attorney to do so Failure to appear at trial because you relied on misinformation provided by a court officer Once again time of filing depends on the grounds you claim; the motion must be filed w/in 6 months after entry of default on grounds of excusable neglect. Voiding a judgment on the grounds of fraud might be your only legal route. Once again you must have indisputable evidence to present to the court. Seeing that I am not a lawyer nor did I stay at a Holiday Inn Express last night this might take some research. But your dates still donâ??t add up, could you double check them.
Hi Desdemona, I have listed the case history below at the end. I hope this gives you a better understanding of everything and clear up any misinterpreted info imparted by me. I think the fraud thing might be difficult to prove. I'm sure you would have to prove 'intent'. And of course Midland's defense on that would be to the contrary. The way to go seems now quite clear and simple to me now. And I only need one good reason to ' Motion To Vacate Judgment'. That reason is the SOL. A credit card debt lawsuit is not sanctionable by the court outside the limits of SOL; and therefore a judgment therefrom is void (voidable). My task remains the same. I need help with putting together a pleading form for the motion. BTW, no specific real property is listed as the lien. The notice just has the caption 'NOTICE OF INVOLUNTARY LIEN'. The CA gov code# is stated for reason of notice. And below that the notice reads: "You are hereby notified that the enclosed document _may_ constitute a lien against your real property. The doc enclosed is an abstract of the Default Judgment." CASE SUMMARY: Histories ( Dates listed in descending order) 05/20/2011 ABSTRACT OF JUDGMENT 12/06/2010 DEFAULT JUDGMENT BY CLERK 12/03/2010 OSC SET 12/01/08, 0830 AM, DEPT. 108, NOTICE FILED & MAILED 12/03/2010 SUBMISSION FOR CLERK'S CIVIL JUDGMENT PENDING 12/03/2010 DISMISSAL AS TO DOES 1 TO 100 INCLUSIVE WITHOUT PREJUDICE FILED. 12/03/2010 DECL RE CALCULATION OF INTEREST; WAIVER OF ATTORNEY FEES; EXH 1, AND 12/03/2010 PROOF OF SERVICE TO COMPLAINT FILED 12/03/2010 REQUEST FOR DEFAULT FILED AND ENTERED 05/30/2008 COMPLAINT FILED - COLLECTION CASE 05/30/2008 SUMMONS FILED
Hi Rawbl If (and I am no lawyer) I am reading this correctly the following happen: 5.30.2008 Summons and Complaint filed 12.1.2008 Default Judgment Filed 12.3.2010 Creditor filed an OSC (Order to Show Cause) and asked for a dismissal without prejudice of the default judgment awarded on 12.1.2008 12.3.2010 resubmitted the Summons and Complaint with a declaration regarding calculation of interest, and waiver of attorney fees 12.3.2010 Proof of service to complaint filed (they probably used 1st class mail) 12.6.2010 Default Judgment Filed 5.20.2011 Abstract Judgment filed with county recorder, lien placed on your property. An abstract of judgment can only be removed off a property by the recording of a satisfaction of judgment. In order to do that, you would have to pay off the judgment. If the creditor is willing to accept less, you can try to negotiate to pay less but have the judgment considered satisfied. ONLY the judgment creditor can file the satisfaction of judgment. It would have to be filed with the court that the judgment was obtained from and then recorded with the county recorder's office (where the property is located). You have your work cut out for yourself: You need to prove that the summons and complaint was filed after the SOL was expired 41 months later after being served. You only have your credit report as “proof “of last activity. IMHO this is an uphill battle with one leg in a cast and no crutches. So ask yourself what is the value of the property the lien is placed on? Is it worth the fight? Are you planning to sell any time soon? Bankruptcy will strip the lien and the debt. Sit on the property for 10 years (2020) and if they “forget” to renew the lien then file a satisfaction of judgment due to the fact they did not renew the judgment. Without that undisputed proof of the SOL being up prior to filing, you my friend need a lawyer to represent you in court. Good Luck With Everything.
Thanks Desdemona Your study of the situation, info material, and prompt/helpful responses are most appreciated. It is sincerely comforting to know that someone is willing to spend time and energy to help me sort this out. You speak of Judgment Lien being a lien on my property (value being worth it and all). As exclaimed in last post... what property? No specific property was spelled out. And furthermore I do not have any property of value. And certainly, assets that may be aquired in the future by me will be held outside of the lien territory. I do not think this is difficult at all. Given the fact that I can prove the SOL (even if it means going to OC and getting last activity on payment); this is a slam dunk. The SOL voids the Judgment/lien , i.e., not enforceable by court. As I have been asking/seeking all along; I just need someone who can help me properly create a pleading form for 'Motion To Vacate Judgment'. So if any one can help please chime in. Thanks, And anxiously awaiting.
Rawbl as I said my friend you need a lawyer - you donâ??t have just a default judgment against you, you have an abstract of judgment which is a property lien recorded in the county the property is located. Somewhere there is a piece of property with your name on the title, the plaintiff found it and placed a lien on it. This is more than voiding a judgment, you still have to deal with lien and if by some miracle you win, and you still have to make sure the plaintiff files a satisfaction of judgment to release the lien. You are also relying on the OC to provide to you, what you say is proof that the SOL is expired in hopes to have the judgment voided â?? 8 years later. Stop worrying about the motion right now; you need proof before you file, try contacting the OC and ask for back statements (I personally wouldnâ??t be shocked if there isnâ??t a fee involved). IMHO I would file a motion to dismiss with prejudice based on the original complaint was filed after the SOL expired. A motion to vacate has specific deadlines for appeal and you my friend might have pass them last year but with a motion to dismiss with prejudice it could wipe the debt away completely. You of course will have to file a motion to have the plaintiff to file a satisfaction of judgment to release the lien at the same time. If not you will have to deal with the lien if you ever need to transfer title. In a filing a motion you have to give your defense and you must provide case law to support that defense, in other words you need a lawyer to word your motions. Check the web for free legal clinic in your area; you can take your proof and motions and ask them to walk you thru the process. They canâ??t represent you in court but they know the case law. Good Luck.
Hi Desdemona I went back to research again the situation. In order to get a dismissal on a real property lien, you have to get the Judgment vacated. So 'Motion To Vacate Judgment' seems to be the right avenue of approach. I am still eligible for this Motion because I just learned of the Default Judgment/lien only a few weeks ago (and regardless of not answering summons or non-appearance). Hate to beat it to death. But I do not want to be left with the notion that this situation is too late to point out to the court that the lien is applied from a Judgment that is fraudulent (and thus void). The legal clinics are a joke (at least the limited few in my inquiry). And Lawyer expenses would come pretty close to the amount of the Judgment ($2950). I was thinking about notifying plaintiff/lawyer of granted Judgment. And specifically warn them; that I will sue if he/she does not squash and make right this unscrupulously and fraudulently acquired Judgment. However, that course of action might be best left to a limited-scope lawyer who can word it in a legal, meaningful, and serious manner. Any corrections or reflections? And what do you think of me or a legal addressing plaintiff/lawyer to insist that this wrongfully acquired Judgment/lien be squashed (or else be hit with a lawsuit)?
