Help with vacating judgment

kal9988 · ‎10-28-2010

I have a civil judgment against me -- I paid it off but I want to attempt to get it vacated, as I was never served. I live in California -- do I need a lawyer, or can I/should I do this myself? The website for the courts only has a form to vacate a small claims judgment, but none for a civil judgment. Also, the creditor has not yet sent in the satisfaction of judgment -- should I wait until that goes through before attempting to vacate? Thanks!

Creditaddict · ‎10-28-2010

I would think you would need to get the satisfaction before trying to vacate for better chances.

RobertEG · ‎10-28-2010

If the judgement has now been satisfied, getting it vacated requries a motion back before the court.

My understanding is that, if the motion before the court comes from the prevaling party in the judgement, then the court will usually grant it.

If you file it yourself, the court may be reluctant without consent of the prevailing party.

But I wiill leave final advice to our prevailing legal expert, O6. Catch him on his next visit to the site!

Anonymous · ‎10-29-2010

@RobertEG wrote:
If the judgement has now been satisfied, getting it vacated requries a motion back before the court.
My understanding is that, if the motion before the court comes from the prevaling party in the judgement, then the court will usually grant it.
If you file it yourself, the court may be reluctant without consent of the prevailing party.
But I wiill leave final advice to our prevailing legal expert, O6. Catch him on his next visit to the site!

Robert, as usual, has it right.

To vacate a judgment you need to file a motion with the court and specify precise legal grounds why the judgment should be vacated. Unfortunately, simple payment of a judgment is seldom grounds to have it vacated.

You mentioned never being served. Just because you weren't handed papers personally or were even aware of the lawsuit does not necessarily mean you were not properly served. The first step to take is to get a copy of the court records -- specifically the return of service documentation to see how you were supposedly served. Once you have than, it is a rather simple matter to look up service requirements laid out in California's Civil Procedure Law.

Once you decide that you were not likely served, I would first contact the judgment creditor and enlist either their active acquiesence or, at least, their committment not to respond to any court documents. As Robertstated, you virtually always have a better chance of success if the judgment creditor does not object.

File your Motion to Vacate and wait for the court to schedule a hearing on the matter. If the judgment creditor does not appear, you'll probably end up having the judgment vacated. If, however, they do appear, the court will decide the case on its merits. You may or may not win.

Anonymous · ‎10-29-2010

06,

I am actually going through the same thing. I actually paid the judgement to the plaintiff, the person is the lawyer and plaintiff for hisself back in 2005, but public records still have the balance of $3337.0, which should be $0. I have tried to contact the plaintiff by phone, vm, and snail mail, and I even sent it certified delivery receipt twice, which him or someone else signed his name, but I yet to recieve any response to him, I am at a lost at what to do next. It has came off my Trans and equ, but not my experian. The item came off, but not the public record on my exp. Any suggestions on what my next step should be?

kal9988 · ‎10-29-2010

06, thanks for your help. The plaintiff is a state agency, and they are very by-the-book. I have asked about the judgment but they will not do anything about it. California Law only talks about judgments in small claims civil cases -- for that, there needs to be service. However this is a limited civil case. In fact, the Superior Court website only lists a motion to vacate form for small claims. Would I be able to use it for this as well?

I know that Satisfaction of Judgment won't be enough to vacate the judgment -- however, since it is a state agency, I feel that I would have a better chance at getting it vacated for non-service if it was paid. I looked up all documents filed in the case, nothing mentions service.

I feel like my best shot is waiting for the satisfaction papers to go through and filing using the motion to vacate form for small claims. I cannot appear in person as it was filed 9 hours away from me. I can only hope that the state agency will be bureaucratic and not respond to the motion in time.

Should I get an attorney or do it myself? (If so, what type of attorney?) What would you recommend?

Thanks!

Anonymous · ‎10-29-2010

@Anonymous wrote:
06,
I am actually going through the same thing. I actually paid the judgement to the plaintiff, the person is the lawyer and plaintiff for hisself back in 2005, but public records still have the balance of $3337.0, which should be $0. I have tried to contact the plaintiff by phone, vm, and snail mail, and I even sent it certified delivery receipt twice, which him or someone else signed his name, but I yet to recieve any response to him, I am at a lost at what to do next. It has came off my Trans and equ, but not my experian. The item came off, but not the public record on my exp. Any suggestions on what my next step should be?

Ok, please tell me if I understand correctly:

You have a judgment where the judgment creditor is also an attorney. You negotiated a pay-for-delete (PFD) and paid the amount required of you. The judgments have since been deleted from TU & EQ, but has not been deleted from EX. The judgment on EX still shows a balance of about $3k -- it has not been marked as "satisfied" -- and the judgment in the court clerk's office also still owes a balance. Is any or all of this correct?

First, let's look at the judgment not being shown as "satisfied". Although it wouldn't likely affect your credit score, but upon manual review -- especially in a mortgage application -- it can often help. Then there is the issue of the non-satisfied judgment being enforced against you -- again! An important first step is having the judgment satisfied. Let's say the judgment creditor dies and his estate sees the judgment. It is not satisfied and they can attempt to enforce that judgment against you and collect payment again. This happens.

Most state laws require a judgment creditor to file a Satisfaction of Judgment with the court clerk within a certain period of time -- usually two weeks -- once the judgment is paid. I debtor should never -- never -- never pay off a judgment without getting a notarized Satisfaction of Judgment and General Release. There are zero exceptions to this rule. I realize this comes too late in your case, but keep it in mind should someone ask you for advice about paying off a judgment in the future. Even when you get the judgment deleted from EX, it is still very important to ensure the judgment is noted as satisfied in the court clerk's judgment rolls.

The trigger to many of the state laws regarding satisfaction of judgments is the judgment debtor sending a demand letter to the judgment creditor demanding, obviously, that the judgment be marked as satisfied within, say, two weeks. Send the judgment creditor a letter (CMRRR) stating that your state law requires that he document to the court clerk that the judgment has been satisfied within two weeks of receipt of your letter. Since he is an attorney (or at least you believe him to be), indicate that if after two weeks you will check with the court clerk and if the judgment has not been marked as satisfied you will immediately and without further warning file a complaint against him with the State Bar Association. Somewhere in the body of your letter state that "his negligence in having the judgment satisfied earlier has 'caused you harm'". Once the court clerk's records reflect that the judgment has been satisfied, you can file a dispute with EX and they will also mark the judgment as satisfied on your credit report.

Now, your goal is to have the judgment deleted from EX. What documentation do you have that the judgment creditor accepted a PFD? Hopefully you have written evidence. I would send another letter (CMRRR) to the judgment creditor and reiterate his acceptance of your PFD offer thus creating a binding and legally enforceable contract. Give him about 30 days to correct his breach of contract and tell him that after 30 days if the judgment still appears on EX you will not only sue him, but also file a complaint with the State Bar Association. As above, in your letter be sure to state that his failure to abide by the terms of the contract has caused you harm.

Is the judgment creditor the original creditor or did he sue you on behalf of another such as, for example, a bank?

The two letters above should solve your problem, but in the unlikely event that they do not, come on back and I will lead you through the steps to smack that moron upside the head with a big stick.

Anonymous · ‎10-29-2010

@kal9988 wrote:
06, thanks for your help. The plaintiff is a state agency, and they are very by-the-book. I have asked about the judgment but they will not do anything about it. California Law only talks about judgments in small claims civil cases -- for that, there needs to be service. However this is a limited civil case. In fact, the Superior Court website only lists a motion to vacate form for small claims. Would I be able to use it for this as well?

I know that Satisfaction of Judgment won't be enough to vacate the judgment -- however, since it is a state agency, I feel that I would have a better chance at getting it vacated for non-service if it was paid. I looked up all documents filed in the case, nothing mentions service.

I feel like my best shot is waiting for the satisfaction papers to go through and filing using the motion to vacate form for small claims. I cannot appear in person as it was filed 9 hours away from me. I can only hope that the state agency will be bureaucratic and not respond to the motion in time.

Should I get an attorney or do it myself? (If so, what type of attorney?) What would you recommend?

Thanks!

A state agency? Well, that throws a wrench into the machinery. While they may not exactly endorse your efforts at having the judgment vacated, perhaps they will find it not worth their time to contest it should they receive notice from the court. Or if they do contest it, you will prevail on the merits.

Via which process did this agency obtain a judgment against you? Did they sue you in Superior Court or Family Court? Have you looked through the files at the court clerk's office to see how they claim you were served? When did you pay off the judgment? If you were properly served, I see little hope in getting this matter vacated.

Yes, you try using SC-135, modify the headings and other relevant data accordingly, and try to file it to have your judgment vacated. I suspect, however, some court clerks will not accept this. If they will not, ask them to allow you to view cases which have involved a Motion to Vacate, photocopy said Motion and adapt it to your circumstances.

I'm not sure why the court clerk would not have documentation on return (or proof) of service. Virtually every court must establish jurisdiction over the parties before they can try a case. A limited civil case in CA refers to suits where the amounts are less than $25k. You must still be served with a Summons, Complaint and Civil Lawsuit Notice. I would try again and specifically tell the court clerk you want documentation on proof of service. They must have it.

I agree that having the judgment shown as satisfied will probably push a judge into vacating the judgment in the absence of resistance from the judgment creditor.

If you decide to get an attorney, virtually any attorney who ordinarily handles civil cases should be qualified to help. It isn't particularly difficult, but if you are dealing with taxation or child support it could get tricky.

Anonymous · ‎11-01-2010

Sorry kal9988 for adding to your post.

Thnx O6,

I did do a PFD with him in 2004, and I sent him a CMRRR and he signed for it on Oct 12, 2010, but he did not delete or send me any kind of response back. I am trying to get a mortage closed and this is holding me back. I went to civil court on Friday and they said even if it is paid in full, they cannot satisfy it until the plaintiff tells them to, because he can come back and sue for past interest. It can only be satisfied whenI feel as though my hands is tied. He is the original creditor ( I co-signed for a family member for a rental house back in 2004, but never lived there) and the lawyer according to the public records document. How can I look and see if he is an actual lawyer?BTW I am in TN.

kal9988 · ‎11-01-2010

Yup, a state agency -- the EDD -- they claim when I was unemployed, they overpaid me unemployment benefits. They filed (in Superior Court) a "Certificate for Summary Judgment, Summary Judgment, and Notice of Entry of Judgment " and were granted the judgment. I was not informed about the judgment as apparently they only had my old mailing address. However, 7-8 months later, when it came to have my paycheck withheld, they were miraculously able to find my employer and serve them with the withholding order.

I personally was never served and found out about the judgment through my employer when they were served.

I will do as you suggested, and contact the clerk to seek the proof of service in my case, and find out how to vacate a civil limited case.

Thanks!