Posted on

Kenosian & Miele’s Default Judgment based on faulty service set aside and case dismissed!

  • Jared Hartman, Esq.
  • Posted on January 10, 2017

On January 9, 2018, Judge Scott of the San Joaquin Superior Court granted our Motion to Vacate Default Judgment and Dismiss the case based upon faulty substitute service. Ordinarily, California law permits default judgments based upon substitute service, but only if the substitute service requirements have been strictly followed. This means the party attempting to serve the complaint and summons must exercise reasonable diligence to achieve personal service, and can only leave the complaint and summons with a competent adult residing at your place of residence or usual address of mailing, or a person reasonably in charge of your place of business. They must then follow up by mailing the complaint and summons to your usual place of mailing.

In our case, Kenosian & Miele sued our client for a credit card debt that the client contends was never his. The bank even confirmed via telephone that they had never issued a credit card in his name or under his SSN. It is still not clear how this lawsuit came named our client. However, Kenosian & Miele attempted substitute service at a residence where he had not resided for years, even though all of the client’s public records proved that he resided in a completely different city. The client did not discover the problem until Kenosian & Miele had already obtained a default judgment and executed a levy upon the client’s bank account.

Because Kenosian & Miele failed to provide sufficient documentation to support their argument that they believed he actually resided at the address where they attempted substitute service, even though they clearly had access to the client’s true address of residency through public records, our motion to vacate the default judgment was granted for lack of proper service. On top of that, because Kenosian & Miele had failed to accomplish valid service within 3 years of filing the complaint in 2012, the case was required to be dismissed pursuant to Dill v Berquist Construction Co., 24 Cal. App. 4th 1426, 1433 and CCP 583.210(a).

If you have been served with a complaint and summons, it is vitally important that you must act on it quickly, because California law provides very strict deadlines and requirements for responding to the complaint. If you have discovered that a judgment has been entered against you already, then it is also vitally important that you must act quickly in seeking to set it aside, because again, California law provides very strict deadlines and requirements for seeking the set aside. It is best to have a lawyer help you through this process, because debt buyers and debt collection law firms usually attempt to take advantage of your lack of experience and knowledge in trying to represent yourself.

Related Tags:

Posted on

BEEN VICTIMIZED BY A DEFAULT JUDGMENT BASED ON FRAUDULENT PROOF OF SERVICE?

  • Jared Hartman, Esq.
  • Posted on November 28, 2016

 

Sadly, we have seen numerous incidents of third party debt collectors obtaining default judgment against a consumer based on a proof of service that the consumer claims is fraudulent. This sometimes occurs when the process server simply claimed that the person was served personally, even though we have been able to obtain proof that the consumer did not reside at the address claimed to have been the place for service on the date claimed. More common, however, is that the process server had claimed that substitute service occurred by serving an unidentified JOHN DOE/JANE DOE, even though we are able to obtain proof that no-one other than the consumer resided at the residence on the date alleged, or that the consumer had actually moved from that residence before the alleged service occurred. We have also seen this occur when the process server claimed to have executed substitute service, but failed to show evidence via affidavit of reasonable diligence to first attempt personal service, which also renders the service invalid and consequently renders the default invalid.

In any event, however it may occur, many consumers who have reached out to us only first discovered the default judgment after having received notice from his/her employer that a wage garnishment was about to occur by the debt collector serving a writ of execution upon the judgment. Sometimes, a levy is also placed by the debt collector upon the consumer’s bank accounts, which freezes the finances contained therein and allows the debt collector to withdraw some or all of those finances. Clearly, this can be devastating because it can have a direct impact on the consumer’s ability to budget for living expenses and other necessary life expenses.

If this has happened to you or someone you love, then you must not delay in seeking counsel’s representation. California law requires that the consumer seek to set aside the entry of default and default judgment within six months of first discovering they have occurred. We have unfortunately seen people who have waited, thinking it would just magically go away, or that they have contacted the debt collector directly in an attempt to obtain their agreement to set aside after explaining the service was not legit and only to then be taken advantage of by the debt collector. We have also seen people who have filed hardship paperwork with the court without first contesting the default and without contesting the proof of service, which can be argued as an implicit admission that the service was valid. These are not good options….the best option is to promptly call a consumer attorney to discuss the proper course of seeking to set aside the default and default judgment. There are also very technical requirements that must be met in seeking to do this, and a failure to meet every single technical requirement can result in the motion to set aside being denied with prejudice, which means the consumer has now forever lost any ability to ever seek to set them aside.

Again, the best option is to promptly consult a consumer attorney to discuss the proper course on how to pursue the set aside based upon the consumer’s individual circumstances. One example motion to set aside can be found by clicking HERE.

If we are successful in having the entry of default and default judgment set aside, then it is possible for us to file a counter-suit against the debt collector (and possibly the process server) for engaging in unfair and oppressive conduct and misrepresentations. Many federal courts have ruled that it is not possible to file a Fair Debt Collection Practices Act before obtaining the set aside, because such a lawsuit operates as an indirect appeal of the court’s entry of default without actually having taken an appeal through proper channels. So, the best strategy is to first obtain a court ruling setting aside the entry of default/default judgment and then review the case for a counter-suit.

If you or anyone you know is in such a circumstance, please do not hesitate to contact us promptly for a free and confidential consultation to review your particular circumstances.