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Civil Code section 1788.61 motion to vacate a judgment in California

by Stan Burman

A Civil Code section 1788.61 motion to vacate a judgment in California is the topic of this blog post. 

A Civil Code section 1788.61 motion to vacate a judgment in California is an excellent method that certain Defendants in California can use to fight back against debt buyers.

California residents now have a very useful tool with which to defend against lawsuits filed by debt buyers who typically purchase charged-off credit card or other debts for pennies on the dollar.

There have been many cases, both in California and in other states, where debt buyers have purchased charge-off accounts without bothering to get even basic account information, such as the credit contract, from the seller of the debt.  This resulted in some debtors being at the mercy of unscrupulous debt buyers who rarely if ever provided debtors with accurate information about previous payments or prior interest charges.  Many debt buyers also obtained default judgments through the questionable use of what is known as “substituted service.”

Advantage of a Civil Code section 1788.61 motion to vacate a judgment in California.

A Civil Code section 1788.61 motion to vacate a judgment in California has a very important advantage over motions to vacate filed under other code sections as the deadline to file the motion is much longer.

Limitations imposed on a Civil Code section 1788.61 motion to vacate a judgment in California.

However a Civil Code section 1788.61 in California motion to vacate a judgment can only be filed in situations where:

Plaintiff is a debt buyer, and

The judgment was taken against the Defendant due to lack of actual notice in time to defend the action and the lack of actual notice was not caused by Defendant’s avoidance of service or inexcusable neglect, and the default or judgment was entered on or after January 1, 2010, or

The judgment was taken against the Defendant due to identity theft and the Defendant has attached either a copy of a Federal Trade Commission Identity Theft Victim’s Complaint and Affidavit or a copy of a police report filed by Defendant alleging that he or she is the victim of an identity theft crime, including, but not limited to, a violation of Section 530.5 of the Penal Code, for the specific debt associated with the judgment to the motion, or

The judgment was taken against the Defendant due to a case of mistaken identity such as a situation where the judgment should have been entered against someone else that shares the name of the Defendant.

Deadline to file a Civil Code section 1788.61 motion to vacate a judgment in California.

The deadline to file a Civil Code section 1788.61motion to vacate a judgment in California is within six (6) years after the entry of the default or judgment, or within 180 days of the first actual notice of the action, whichever is earlier.

However if the judgment was entered as a result of either identity theft or mistaken identity it does not matter how long ago the default or judgment was entered as long as the motion is filed within 180 days of the first actual notice of the action, whichever is earlier.

Civil Code § 1788.61 states that,

“(a) (1) Notwithstanding Section 473.5 of the Code of Civil Procedure, if service of a summons has not resulted in actual notice to a person in time to defend an action brought by a debt buyer and a default or default judgment has been entered against the person in the action, the person may serve and file a notice of motion and motion to set aside the default or default judgment and for leave to defend the action.

(2) Except as provided in paragraph (3), the notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of:

(A) Six years after entry of the default or default judgment against the person.

(B) One hundred eighty days of the first actual notice of the action.

(3) (A) Notwithstanding paragraph (2), in the case of identity theft or mistaken identity, the notice of motion shall be served and filed within a reasonable time, but in no event exceeding 180 days of the first actual notice of the action.

(B) (i) In the case of identity theft, the person alleging that he or she is a victim of identity theft shall provide the court with either a copy of a Federal Trade Commission Identity Theft Victim’s Complaint and Affidavit or a copy of a police report filed by the person alleging that he or she is the victim of an identity theft crime, including, but not limited to, a violation of Section 530.5 of the Penal Code, for the specific debt associated with the judgment.

(ii) In the case of mistaken identity, the moving party shall provide relevant information or documentation to support the claim that he or she is not the party named in the judgment or is not the person who incurred or owes the debt.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by Section 1005 of the Code of Civil Procedure, and it shall be accompanied by an affidavit stating under oath that the person’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The person shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. Either party may introduce, and the court may consider, evidence in support of its motion or opposition, including evidence relating to the process server who appears on the proof of service of the summons and complaint.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that the person’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, the court may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. If the validity of the judgment is not challenged, the court may select an appropriate remedy other than setting aside the default or default judgment.

(d) This section shall apply to a default or default judgment entered on or after January 1, 2010, except in the case of identity theft or mistaken identity, in which case this section shall apply regardless of the date of the default or default judgment.

(e) This section shall not limit the equitable authority of the court or other available remedies under law.”

Sample Civil Code section 1788.61 motion to vacate a judgment in California for sale.

Attorneys or parties in California that would like to view a portion of a sample 15 page Civil Code section 1788.61 motion to vacate a judgment in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can use the link shown below.

Sample Motion to Vacate Judgment Under Civil Code Section 1788.61 in California by Stan Burman on Scribd

 

Over 300 sample legal documents for California and Federal litigation for sale.

To view more information on over 300 sample legal documents for California and Federal litigation visit: https://legaldocspro.myshopify.com/products

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.

For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr.  Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

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