Everyday Law

April 13, 2009

Never served but now there is a default judgment? Set that baby aside!

Filed under: Debt,Judgment — Amy Kleinpeter @ 9:31 pm

In California state court, a party cannot get a default judgment against someone who never knew the lawsuit was occurring.  Service of a summons and complaint are necessary to alert someone of the lawsuit and give the person an opportunity to be heard in court.

What should you do if a debt collector — or anyone — gets a default judgment against you when you were never served?  An attorney can file a motion to overturn the default judgment for lack of personal jurisdiction.

The closer in time to the granting of the judgment, the simpler the motion is — HOWEVER, if you never were served, the judgment can be set aside at any time.

PLEASE note — service does not mean that someone has to hand papers to you and you grab hold of the papers.  Substitute service, where a process server hands the papers to an adult at your residence who admits that you do live there, that counts as service.  If you run or slam the door when a process server shows up and they leave you the documents, that almost always counts as well.  This is not a “gotcha!” type cure-all for all or even most default judgments.  However, if you really were not served and can show that to be true, then contact a consumer attorney to get the judgment set aside.

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2 Comments »

  1. I have been informed of a Default Judgement against me. I have never been served. The Court claims I was personally served in 2004,2006,2007,2010 in locations I have never been to. I was never served, no Warrants for Failure To Appear were ever issued or recalled. I have appeared 5 times 150 miles from home only for continuances.I have to appear Pro Per because I have to live on $400\month. I am disabled and now garnished for 50% of my Social Security. I have never recieved a Notice of Garnishment Order. Motion for Injunction denied by the same Court demanding Payment of $131,000.(30% more than my lifetime earnings). I am threatened with Contempt, Incarceration, License Suspension and more. I have a letter from Santa Clara County that states they have “Total Immunity from being sued” and that they “can do ANYTHING LAWFUL OR UNLAWFUL”. I need help! Where do I look for a Pro Bono consumer attorney?

    Comment by Martin — February 14, 2011 @ 10:24 pm | Reply

    • Martin,
      Is this a child support issue? Student loan? Otherwise your social security should not be garnished. I would go to legal aid in your county or to http://www.naca.net
      Good luck!

      Comment by Amy Kleinpeter — February 15, 2011 @ 7:32 am | Reply


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