I learned that a debt collector has a default judgment against me on a credit card lawsuit, but I was not served. I need to get it dismissed. What form would I use for this?
There is no standardized form for setting aside a default judgment. The default case file must be evaluated. A plan proposed. Then the appropriate papers prepared by someone who has taken the time to become familiar with the case file, the evidence available that proves lack of service, and the law that permits the court to set aside a default judgment. Legal briefing is required and the court often requires counsel to appear for oral argument.
I have filed many such motions and other proceedings to help clients set aside a default judgment that was entered without valid service on the consumer defendant. The papers require careful preparation and evaluation of all available evidence and the applicable law. I have also seen plenty of cases in which the consumer has tried to set aside a default judgment themselves or with limited help by an attorney, which results in the court refusing to set aside the default.
As with any court proceeding, each individual must decide whether to retain competent counsel or go it alone, acting as their own legal counsel (known as “pro per” in state court and “pro se” in federal court). The two common mistakes by consumers for this decision are: (a) not asking an experienced collection defense attorney for a fee quote to be represented; and (b) not considering the downside price, if they fail trying to do it themselves.
In more than 14 years of working for consumers, I believe that in most cases, the cost of hiring competent defense counsel is much lower than the price of handling it without counsel. There is no guarantee of success, but if you are not attorney, then the court will not receive the briefing that it expects, making the outcome more likely to be unfavorable, if the plaintiff’s professional debt collection lawyers mount an opposition.
One more advantage of hiring a lawyer to represent you: once the court restores the case to active status, what is your plan to win the case? Unless you know what to do, after the court sets aside the default judgment, the debt collection agency could convince the court to enter judgment against you, if you are unfamiliar with California Civil Procedure and Rules of Evidence.