I am helping my daughter defend herself against an extremely unethical collection agency, including among other things fraudulent service in order to obtain a default judgment. Our first inkling of this matter was when we rc'd the default order, then called the court who said there was still time to answer, so I prepared the answer and filed it the same day. We were just in court yesterday on a motion to dismiss, and plaintiff's motion to declare requests for admissions deemed admitted. Apparently the judge that was filling in does not like pro per defendants and dismissed the motion to dismiss out of hand, claiming that all the points were facts to be determined at trial, and claiming that the stated laws were federal, which was not the case, the only federal law referenced was the Federal Fair Debt Collection Practices Act as it related to validation of debt, and time barred suits, all other statutes and case laws referenced were California. The judge granted Plaintiff's motion to deem admitted their requests for admissions even though as stated in our opposition to the motion that we had never received those documents, first reference to them was the meet and confer letter from the Plaintiff stating that we did not respond and had until a specific date to reply, which we did immediately, informing them that we did not receive their discovery documents, and to resend them, along with the previously requested validation of debt. There was nothing after that except a copy of the Plaintiff's opposition to our motion to dismiss. At the hearing, the judge said that we then had the requests for admissions because it was attached to the Plaintiff's motion and that we should have responded to that. I am preparing a motion for continuance in order to submit a motion to compel production of documents, as plaintiff responded to demand for production of documents, but did not produce them, and I want to submit a motion to set aside ruling on the admissions requests deemed admitted under sections of CA CCP 473, requesting judge allow defendant to submit the responses to this as the mistake in fact and law, the defendant pro per was mistaken in her belief that there was a reply would neither be allowed or accepted as she was told that the statutory period to respond had expired. Any advice would be sincerely appreciated.

If there was a default judgement already ordered, then you could no longer respond to the filing of the motion but had to prove that the service was incorrect and you needed to have filed an appeal and request to have the motion set aside.

The judge is not required to tell you how to file, or what to file, merely rule on what you present, if you do not present it properly, he can merely rule against you.

1. do you owe the debt,
2. is there anything in the filing beside the service that is wrong
3. did you make a motion to set aside judgement due to incorrect service
4. if yes to 3, did you prove that the service was incorrect

It appears that you are on top of things now that your daughter has become aware of the suit. So I don't see anything that you are doing wrong.

It is difficult reading your post. If you would break up your paragraph and use shorter sentences, it would be better. For example, the following sentence is difficult to understand:

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Originally Posted by lthsinc

... I am preparing a motion for continuance in order to submit a motion to compel production of documents, as plaintiff responded to demand for production of documents, but did not produce them, and I want to submit a motion to set aside ruling on the admissions requests deemed admitted under sections of CA CCP 473, requesting judge allow defendant to submit the responses to this as the mistake in fact and law, the defendant pro per was mistaken in her belief that there was a reply would neither be allowed or accepted as she was told that the statutory period of time to respond had expired. ...

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A mistaken understanding of how the rules work is not likely to be the basis of a successful motion, in my opinion. But it wouldn't hurt to try. What deadline is it that you need continued?

As I understand this sentence, you intend to submit two motions, one to compel and another to set aside the admissions. It would be best if, instead of asking for a continuance, you simply filed the motions. But if you feel you need more time to put these motions together, you will need to show good reasons in you motion for continuance.

Quote:

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Originally Posted by Fr_Chuck

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3. did you make a motion to set aside judgement due to incorrect service
...

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I don't think there is a judgment. As I understand it, defendant received a lodged default order from the plaintiff and was able to answer before she was actually defaulted.

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Originally Posted by lthsinc

Are you familiar with California law?

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Hello l:

You seem to be pretty much up on current law... How's that working out for you? Your problem, as you pointed out, is the judge doesn't like you... He's NOT going to like you better IF you know the law.

So, my advice is to hire somebody the judge will do business with. That'll probably be a lawyer.

excon

Sorry for any confusion, had to type very quickly. There is no default judgement, the case is set for trial on Monday, 08/15/2011. There are two items being requested by the Defendant, one is a request for continuance, (filed this morning), actually the judge told us to submit that in order to have time to file a motion to compel production of documents. The other item I will be preparing, and is referenced in the request for continuance, is a request for relief, asking the court to set aside it's ruling on Plaintiff's motion to deem admitted it's requests for admissions, a discovery document we never received. This is the only item not responded to as it was never received, Plaintiff was made aware that it was never received, as was the court in our opposition to Plaintiff's motion, which included as an exhibit the letter sent and received by the Plaintiff. Plaintiff acknowledged not sending the documents even after being notified that they had not been received by the Defendant. The judge noted that they were included in the Plaintiff's motion, so that apparently sufficed, even though we had been informed by the Plaintiff in letter and in motion, that the statutory period to respond to those admissions had expired, which is why we thought a response to those admissions prior to the hearing on the motions would neither be allowed or accepted. The other item that boggles my mind is that the Plaintiff's motion basically says that our address is correct, so therefore we received the discovery documents. The judge basically said the same thing, in spite of the fact that our history in the case shows prompt responses to everything filed. The crux of this case is that my daughter says that she has no recollection or records of this account, the service was not just faulty, it was fraudulent, and it is a time barred action. Plaintiff has offered no evidence to the contrary of any of this, yet if the judge's ruling on Plaintiff motion stands, we have no grounds to pursue our affirmative defense, and I suppose it will just have to take it up on appeal. I am contemplating filing an Ex Parte motion tomorrow to see if the judge will grant the relief, setting aside the ruling and allowing us to reply to the requested admissions, so we can still go to trial on Monday. If the judge grants the continuance, then I'll have time to prepare and file the motion on non-Ex Parte basis, will hopefully find out if continuance is granted in the morning.

Also, I did reference the faulty, fraudulent service in my motion to dismiss, but I did not ask that the case be dismissed on that basis, as from what I understand, that would result in dismissal without prejudice, which would allow them to refile the case. We were looking for the case to be dismissed with prejudice, but if I have to appeal a judgment, I will use that as a basis. There were other items detailed in our motion that were wrong with the filing, including being time barred, no evidence of liability, no written instrument included, to name a few, but the judge said that everything cited were facts to be determined at trial and not a basis for dismissal. This confused me as in my research, I'd read several prevailing motions to dismiss that were similar to mine, but that was the ruling.

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Originally Posted by lthsinc

... I am contemplating filing an Ex Parte motion tomorrow to see if the judge will grant the relief, setting aside the ruling and allowing us to reply to the requested admissions, so we can still go to trial on Monday. ...

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What does an "ex parte motion" mean to you? Normally it means a motion which is not served on the other side, but apparently in California it means a motion which the other side isn't given the full amount of time in which it could normally respond &/or a motion for which a hearing is not scheduled.

Quote:

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Originally Posted by lthsinc

... There were other items detailed in our motion that were wrong with the filing, including being time barred, no evidence of liability, no written instrument included, to name a few, but the judge said that everything cited were facts to be determined at trial and not a basis for dismissal. This confused me as in my research, I'd read several prevailing motions to dismiss that were similar to mine, but that was the ruling.

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If that's the ruling, play the cards you're dealt. Have your daughter go to trial and see what the plaintiff is able to prove. If, after plaintiff makes it's case, your daughter should move for dismissal with prejudice (the same as a motion for a directed verdict if it's a jury trial).

Be prepared for your daughter not being allowed to have you assist you. If you are not an attorney, normally you would not be allowed to open your mouth or sit at the counsel table. So coach her fully, just in case.

Ex Parte motion in California usually means an emergency hearing, in this case because trial is on Monday, and the ruling would affect the timing or outcome of the trial. You are allowed to not serve the other party if you explain why, so that could go either way. I was originally thinking that we would play the cards as dealt, but I realized that by the judge granting the Plaintiff's motion to deem admitted their requests for admissions, among all the I admit the account was mine, charges mine, etc. was the last one that says I admit that payments were made within the 4 year statute of limitations. By reason of granting this motion it effectively removes our attempt at an affirmative defense against the complaint as a time barred action, leaving us no to defend the case, other than the fraudulent service. None of the admissions are true, and the Plaintiff has thus far provided no evidence of liability, that the action is not time barred, or production of any documents. But they were able to sneak this in, the way they've done everything else, and not sure what options if any are available at this point unless case is continued, or ex parte motion succeeds. Waiting to see if continuance is granted so I can take time to prepare motion to set aside ruling, but if not continued, then I may have to file the ex parte motion to be heard on Friday. And yes, my daughter will be on her own, as she was at the hearing, no problem there, I'm just helping get the leg work done. Any suggestions or alternatives would be greatly appreciated. Thank you.

Ok, so just checked with the court re: my request for continuance. The clerk's office could not locate an answer so they connected me with the courtroom. The woman there was not the clerk, she had been sitting in the bailiff's chair when we were in court, but she was not a bailiff, so not sure what she is. When I asked about the request for continuance, she looked it up and said they would not have accepted that, that it would have had to have been an Ex Parte Motion to Continue to be considered. When I told her that the judge had specifically told us to file a request for continuance, she insisted that he'd said an Ex Parte motion, which is absolutely not true, those words never came from his mouth, as both my daughter and I can attest to, we followed the judge's directions exactly. This woman insisted that she was there too, and claims that he'd said the Ex Parte... whatever. She then said that they only hear Ex Parte motions today, and we'd have to get to the court for appearance, and notice the other party by this afternoon. (they are in Northern CA)She said that it is highly unlikely that anything can be done. So it looks like we are going to court on Monday. It appears that the only thing we can do is move for a continuance in front of the judge, (it will be a different judge), for the reasons listed in the request, namely that it is necessary in order to prepare and file a motion to compel production of documents, and a motion to set aside previous ruling on Plaintiff's granted motion to deem admitted the requests for admissions. Without these the case is unduly prejudiced, and precludes our ability to present an affirmative defense. Barring receiving the continuance, the only thing I can think of is to present the information on the faulty/fraudulent service and hopefully it will be dismissed on those grounds, albeit without prejudice, so we may have to do the whole thing again if they refile. If all fails and they are given a judgment, I guess we will then have to pursue the appeal aspect. Dose this make sense? This is our first experience with all of this, and we don't have the money to hire an attorney, so is there anything else you can suggest that we try, or don't try?

By the way, we feel like a diminutive David against a gargantuan Goliath, so thank you for taking the time to review and answer, it is sincerely appreciated, it makes us feel a little less helpless against the system.

Got a few questions if you are available:
1. When in court, are we allowed to request that judge to consider a motion to set aside the previous ruling on the Plaintiff's granted motion to deem admitted their requests for admissions? She would base it on CA CCP §473(a)(1), which allows the court to correct a mistake in any respect to a proceeding,(b),which allows the Court to provide relief due to mistake, inadvertence or excusable neglect, and (c),which allows the Court to grant other relief as is appropriate. In this case the mistake in fact and law was Defendant's mistaken in belief that a reply would neither be allowed or accepted as she was told by the Plaintiff in letter and in motion that the statutory period to respond had expired. Defendant did not realize that including a copy of the requested admissions as an exhibit extended the statutory period within which the Defendant could have replied.

Does this make sense? Is it allowed?

2. Should she then request motion to continue to allow time to prepare motion to compel production of documents and motion to grant relief from previous ruling on Plaintiff's motion and allow Defendant to reply to requested admissions? Would this be allowed?

3. If continuance is not granted, or requesting it not appropriate, and since the motion was granted to deem admitted the requests for admissions, and those admissions covered liability and payments within the statute of limitations, does that mean she will not be able to address any of those issues? (ie - validation of debt, proof of liability, proof that action is not time barred)

4. If that's the case, should she just then focus on the faulty/fraudulent service and move for dismissal?

Anything else you can think of to suggest, she will be appearing before the regular judge on Monday. Thank you, thank you.