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NZEVANS · Mar 13, 2008, 10:40 AM

I live in CA, Los Angeles county and I am sued in the Superior Court.
In Dec 2007 I was sued by Discover Bank and I found out after the facts because I had moved from my old address where they served me. The new tenant signed for the letter and did not inform me.
I found out when it was too late and by then a judgement had been entered against me.
I filed a motion to vacate the judgement on the ground that I was not served properly because I did not reside there anymore. The clerk wrote to Discover and told them about the fact that I moved when they served the summons and he asked them if Discover will consider vacating the judgement. Discover said that it will not vacate the judgement and wants a trial date with me. What next? I am willing to settle the debt ($2,642) with them, but I want the judgement removed from my credit report. How can I make them vacate the judgement and settle with me privately? How much can I negotiate to pay (50%?)

Thanks

Nzevans

ScottGem · Mar 13, 2008, 11:55 AM

Umm, it doesn't work that way. The clerk doesn't ask the plaintiff to vacate a judgement. You file a motion with the clerk and its decided on by a judge. Also in the unlikely event that did happen, if the plaintiff refuses to vacate, then there is no new trial.

All you need to do is make a settlement offer. They may want to negotiate with you , but you just need to stipulate that part of the settlement is that they rescind the judgement.

NZEVANS · Mar 13, 2008, 12:14 PM

This is a cut and paste from my email. This is what their lawyer said: "We will not consent to vacating the judgment. We are available for a motion hearing date anytime after XX, 2008. Please advise of the motion hearing date and time. Thank you.

NZEVANS · Mar 13, 2008, 12:16 PM

I have filed a motion to dismiss with the clerck on the ground that I was not served properly. What's next?

ScottGem · Mar 13, 2008, 12:41 PM

Originally Posted by NZEVANS

This is a cut and paste from my email. This is what their lawyer said: "We will not consent to vacating the judgment. We are available for a motion hearing date anytime after XX, 2008. Please advise of the motion hearing date and time. Thank you.

Ahh that's different. What the attorney is saying is that they will not consent to a Vacate motion, but its your right to request a hearing on that motion, so they are saying when they will be available for such a hearing. Now you go into that hearing and they will show that a notice was sent to a valid address and accepted. The judge may rule that was proper service. Or he may not, in which case, they simply refile. Since it appears the debt is valid, they will win and the judgement goes back in.

So while you wait for this hearing, you offer to negoitiate a settlement as I said before.

NZEVANS · Mar 13, 2008, 01:26 PM

Yes, I will go to the hearing. I want to settle out of court with them. I need the jugement out of my credit report.
How about the statute of limitation? I read somewhere that it is 4 years in CA. The last day of payment was March 31, 2003 and I got sue on June 2007. Clearly the statute has expired.

ScottGem · Mar 13, 2008, 05:55 PM

If you want to settle try to do so before the hearing. As to the SOL, If you do have to go to the hearing, then you can try brining up that issue as grounds to vacate.