Setting Aside Default Judgments in California
If a creditor goes to the trouble to sue you, they mean business. If for any reason you do not respond to a summons and complaint within the time required by California law — usually 30 days — the creditor can seek and obtain a default judgment. The court typically awards the creditor the amount of money claimed in the complaint, together with interest, court costs and attorney fees. That judgment has the same force and effect as if you had gone to trial and lost. The creditor can use the judgment to carry out collection methods like garnishing your wages or attaching your bank accounts and other assets.
Do you have any legal recourse? The answer is yes. California law prefers that cases be decided on their merits rather than on procedural shortcomings. As such, you have the right to set aside or vacate a default judgment if you can establish justifiable reasons for your original failure to respond.
If a default judgment is entered against you, usually you have only 180 days to contest it. An experienced California debt-relief attorney can determine whether you have grounds for a motion to set it aside, such as:
- Lack of proper service of process or actual notice — If you were not served with the summons and complaint according to law, the court has no jurisdiction over the lawsuit and the judgment is invalid. For example, you may not have been served personally or by an alternative legal method, such as leaving the documents with a person of suitable age at your residence. Even if service was proper, you may be able to show that you had no actual notice of the nature of the lawsuit and were not given adequate time to answer.
- Inadvertence or excusable neglect — This means you overlooked or did not respond to the summons despite exercising reasonable prudence. For example, you may have been suffering an illness or disability, taking care of a sick family member, traveling for an extended period of time or serving in the military. However, it is not excusable simply to have forgotten about the summons and complaint or to have put them aside while deciding what to do about them.
- Mistake — You may have been genuinely mistaken about the nature or validity of the documents served on you. For example, you believed in good faith that the debt had been paid off. Or you were a victim of identity theft and the summons and complaint targeted another person who used your name.
Usually, a court deciding on a motion to set aside a default judgment will focus on whether the failure to respond was reasonable under the circumstances and whether you have a plausible defense to the underlying lawsuit.
Located in downtown Beverly Hills, the Law Offices of Michael Jay Berger provides a wide range of services for individuals and families suffering from the weight of excessive debt. Call me at 310-271-6223 or contact me online to schedule a free consultation.