If a defendant was never served with the summons & complaint, and intends to file a motion to set aside the default judgment, does filing a claim of exemption under Section 703.520 constitute a general appearance, and would it impair defendant's ability to get judgment set aside?
Filing a claim of exemption generally isn't considered a general appearance, and it could impact your claim that you don't owe the debt in that you're apparently agreeing to the judgment (depends on how it's done and the thinking of the judge). Frankly, I would think long and hard about trying to set aside the judgment. You don't mention whether you actually owe the debt or not - I'm guessing that you do. Your complaint appears to revolve around a claim of lack of service, which is tough to prove - have you looked to see what the certificate of service says? Regardless, if you try to set aside the judgment, all that will do is make the creditor refile the complaint and serve you. They'll then get another judgment, except the costs will have increased due to the litigation. You'll still be in the same place as you are now.
While the filing of a claim of exemption is not treated by the clerk of the court as an appearance in the case, it will reflect that you became aware of the lawsuit and default judgment. Judges and case law require a defendant to act promptly to set aside a default judgment from when the learn of it, typically within 90 days of learning of the default judgment.,
Please see my blog (linked below) on your options, upon learning of a default judgment. Also, I have a legal guide on on how to reduce or eliminate a wage garnishment, which you should review. Setting aside a default judgment can be challenging, even for lawyers. I urge you to consult with a lawyer who regularly sets aside default judgments, because there are several requirements that are often overlooked by those who don't handle these regularly.
Robert Stempler (please see DISCLAIMER below)
www.StopCollectionLawsuits.com
Twitter: @RStempler
Manuel Alzamora JuarezCar / Auto Accident LawyerBerkeley, CA ·
I believe you would be shooting yourself on the foot if you file the exemption. Best bring a motion to set aside the judgment based on failure to be personally served. Remember to file your declaration signed under penalty of perjury and provide proof and declarations of other witnesses that can declare where you were the day you were served. If you win you get to fight them fair and square. However, unless you have an affirmative defense such as Statute of limitations or you are the wrong party, i.e. mistaken identity, your effort will prove futile. The collector attorneys are not going to give up and unless you have an FDCPA violation against them that you can file in Federal Court, beware of the ides of March. You will be best served consulting with a local attorney and talk turkey with him. Never admit to any debt until you talk to an attorney. You may have a defense. Best of luck.
