Yes, but only after the collector has obtained a judgment after filing suit. Unfortunately, many debt collectors file suit and fail to properly serve a debtor with the summons and complaint in a case. Debt collectors sometimes serve the complaint at an old address.
Later, the debtor is shocked to see that their wages are being garnished and/or their bank account is being levied. This is because the debt collector files a proof of service with the court and proceeds in obtaining a judgment by default.
Fortunately, however, we can file a motion to set aside the default judgment and ask for the court to allow the alleged debtor an opportunity to defend the case. We have been able to set aside these default judgments for many clients and successfully defend the case with our client paying nothing to the debt collector.
Many consumers are unaware of the ability to set aside a default judgment.
This is a common example we see in our industry. The defendant has never been properly served with the complaint and has no notice that a lawsuit has been filed. The defendant fails to respond to the lawsuit due to the lack of notice and ultimately discovers a default judgment has been entered against them. The defendant will finally receive notice of the default after their wages have been garnished or their bank account was levied.
However, the law does provide the consumer with the ability to challenge the service of the complaint through a motion to set aside a judgment. The plaintiff is required to serve the defendant in compliance with Code Civ. Proc. §415.10, §415.20. However, on occasion, the defendant does not receive the summons or complaint either personally or in the mail. Under these circumstances, a motion can be made on the grounds that the judgment is void as no valid service of the complaint occurred and the defendant’s failure to respond was based on not having actual notice.
If the defendant was never served and did not have actual notice to respond to the lawsuit the judgment is void and can be set aside. Code of Civ. Proc. §473(d). “[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.” (Ellard v. Conway (2001) 94 Cal.App.4th 540 quoting Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1444.)
It is important to take action as soon as you receive actual notice of the lawsuit as there may be time limitations.
This is another common example we see in our industry. The defendant simply failed to respond to the complaint due to their mistake, inadvertence, or surprise. This may occur when the defendant has a reasonable excuse for their failure to file a response within the applicable time limit. It is also important to take quick action in this instance as there are time limitations to respond with a motion to set aside.
Under these circumstances, you may be able to set aside the default and default judgment pursuant to Code Civ. Proc. § 473(b) if the default judgment was obtained within six months.
Receiving a default judgment is not the end of the road. It is key is to take action or contact local counsel after you receive any notice in regard to the legal action.
If you live in California and a default judgment has been entered against you as a result of one of the above circumstances please contact our Chula Vista & San Diego, CA Consumer Right Protection Attorney Law Firm to discuss how we can help at 619-476-0030.