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Is there a time limit for motion to set aside a default judgment? Defendant unaware due to lack of actual service.
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Judgement took place 2005. plaintiff spelled last name incorrectly in complaint. Summons was subserved to incorrect address to a Bob Doe. Physical description does not match any known associates. Defendant completely unaware of default judgment and complaint altogether. Levy of bank account occured just recently.CCP 473.5(a) states 2 year time constraint but 410.10 moves that court had no jurisdiction over defendant. Does the clock start when defendant first becomes aware of judgment or when clerk logs judgment? What other argument can defendant state? Defendant denies allegations and has meritious defense.
Under CCP 473.5(a), if service of the summons is proper, but it does not result in "actual notice" of the lawsuit to the defendant, the motion to set aside must be filed within a reasonable period of time not exceeding two years within the date judgment was entered. This lack of knowledge cannot be caused by the defendant's inexcusable neglect or avoidance of service.
Under CCP 473(d), a court void judgment can be set aside at any time. A judgment may be void in fact if the judgment appears to be properly entered in the court file, but evidence shows that the judgment was improperly entered, for example, if a defendant can establish that the Summons was never served. However, substantial compliance with the service of summons statutes is sufficient to defeat a motion under CCP 473(d).
Moreover, although void judgments can be set aside at any time, motions must be brought within a reasonable time under CCP 473(d). In determining what constitutes reasonable time, courts have referred by analogy to statutory limitation periods. Some courts have applied the six-month period applicable to motions under CCP § 473(b) . Other courts have applied the two-year or 180-day period applicable to motions under CCP § 473.5, particularly when the judgment or order is void in fact due to an extrinsic defect in service (see, e.g., Rogers v. Silverman, 216 Cal. App. 3d 1114 (1989)). Given the wide discretion of the court and the lack of consensus of what constitutes a reasonable period of time, it is typically best to promptly file any motion seeking to set aside a void judgment.
You should speak with a debt collection attorney who can assess your situation based on the specific circumstances of your case. Good luck.
Attorney Asatryan's excellent response is accurate. You are correct that CCP 473.5 has a 2 year time limitation. Therefore, if you are unable to procure a STIPULATION from plaintiff's counsel to set aside the void default and to vacate the void default judgment, you ought to proceed under CCP 473(d).
CCP Section 473(d) is your way to go absent stipulation to set aside. You must act with haste and hire an attorney so that you may not lose the procedural battle.
