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Q: What response is available as a defendant listed on an "Entry of Default" ( Answered,   2 Comments )
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Subject: What response is available as a defendant listed on an "Entry of Default"
Category: Relationships and Society > Law
Asked by: patty95120-ga
List Price: $50.00
Posted: 07 Jul 2005 17:09 PDT
Expires: 06 Aug 2005 17:09 PDT
Question ID: 541084
Recently I received a copy of a court filed (in Superior Court of
California, County of Santa Clara), form [982(a)(6)], Request for
Entry of Default.  This was mailed to me 1st class regular mail by the
plaintiff's attorney's firm. I have never been notified of a suit or
received a summons.  Only the header, and sections 1, 5, 6, plus
signatures are filled in.  It says that there was a complaint or
cross-complaint filed on 11/14/04 which I know nothing about.  What
are the ramifications of receiving this?  Should I respond to the
court, and if so, with what form?

Request for Question Clarification by cynthia-ga on 07 Jul 2005 17:37 PDT
Read this page:

Request for Clerk's Entry of Default
http://www.txnb.uscourts.gov/ecf/manual/Request_for_Clerk_s_Entry_of_Default.htm

You can access records concerning the case here:

Santa Clara County Superior Court 
Public Access Case Information Site.
http://www.sccaseinfo.org/

I'm looking for how to respond, but time is of the essence, there is
always a time limit.  It's possible it is as simple as a divorce
judgment, but it could be much, much worse.

Let me know what you find at the Santa Clara Court Case Lookup site.

~~Cynthia

Request for Question Clarification by cynthia-ga on 07 Jul 2005 17:42 PDT
The link above mentions bankruptcy...  A request for "Entry of
Default" is used in all types of suits, when a defendant does not
respond, not ONLY bankruptcy.  I provided the link so you understand
the urgency.  Don't ignore this.
Answer  
Subject: Re: What response is available as a defendant listed on an "Entry of Default"
Answered By: nenna-ga on 08 Jul 2005 15:17 PDT
 
Good afternoon patty95120-ga  and thank you for the question.

I am not a lawyer and I cannot advise on how to legally approach this
matter, however, I can tell you as a paralegal that not responding to
an Entry of Default Judgment could damage you in the long run,
especially given the possible severity of the case.  My best advice to
you would be to hire an attorney immediately.

The Santa Clara County Bar Association Provides Lawyer Referral Service and more. 

Call: (408) 971-6822
Or visit their web site at: ( http://www.sccba.com/ )

In your original question, you state: ?I have never been notified of a suit or
received a summons.?  

HOW TO PROPERLY SERVE A SUMMONS & COMPLAINT:

"The law says that when you sue a person, partnership, corporation, or
the government, you must give formal notice to the other side that you
have started the legal process. This is called "service" or "serving. 
Until the other side has been properly "served," the judge can't make
any permanent orders or judgments.?

California Courts: Self-Help Center: Free and Low-Cost Legal Help
Serving Your Papers & Proof of Service
( http://www.courtinfo.ca.gov/selfhelp/lowcost/getready.htm#serving )


There are two ways to serve a Complaint:

1.	Personally (by sheriff or by a third-party process server); and

2.	By certified mail.  


California Code of Civil Procedure states: 

 414.10 ? ?summons may be served by any person who is at least 18
years of age and not a party to the action." (Added by Stats. 1969,
Ch. 1610.)

 415.10 - "A summons may be served by personal delivery of a copy of
the summons and of the complaint to the person to be served. Service
of a summons
in this manner is deemed complete at the time of such delivery. The
date upon which personal delivery is made shall be entered on or
affixed to the face of the copy of the summons at the time of its
delivery. However, service of a summons without such date shall be
valid and effective." (Amended by Stats. 1976, Ch. 789.)

( http://www.guaranteedsubpoena.com/ca.asp )


A process server or sheriff must personally hand you or someone at
your residence over the age of 18 the documents.  They must then fill
out the Proof of Service and file it with the Court.

If you are sent the Complaint via Certified Mail, a Proof of Service
must be filed with the Court as well, by the Plaintiff?s attorney once
he or she receives the Return Receipt back in the mail (with the
signature of the person accepting service.)

If the server, sheriff or attorney has tried several times, without
success, to serve the Defendant at home or work, (called a ?good
faith? effort) the ?server? must follow steps for substituted service
(in some states you can do service by publication, which means an ad
is placed in a newspaper, stating that you have been sued by someone,
which court, case no., etc.)

In any case, there MUST be a Proof of Service filed with the Court,
which would look something like this:

Proof of Service Form: (
http://www.courtinfo.ca.gov/selfhelp/forms/documents/sc104af.pdf )


The best way to check this would be to take the case number off the
top of the Request for Entry of Default Judgment, contact the Clerk of
the Superior Court in Santa Clara County and ask them if one was ever
filed.  You can contact the Clerk at:

Downtown Superior Court
191 North First Street
San Jose, CA 95113
(408) 882-2100

Additionally, since you have the case number on the Request for Entry
of Default Judgment, you can look up your case on-line at:

( http://www.sccaseinfo.org/ )



REQUEST FOR ENTRY OF DEFAULT JUDGMENT:

To begin with, I would like to explain the meaning of a Default
Judgment.  It is a judgment entered against a Defendant who had failed
to plead or otherwise defend against a Plaintiff?s claim.  It is a
?penalty? against a party who does not comply with a court order.

I think what you were served with was a copy of what the attorney
filed with the court, requesting the Judge to grant them Default
Judgment.  I do not think Default Judgment has already been granted,
but again, an attorney would know best.

The Default Judgment may be set aside or vacated by the court at the
request of the defendant if the Motion To Vacate Default Judgment is
made within six months of the entry of default (or up to two years
where service of the original summons has not resulted in actual
notice to a party in time to defend) and there are adequate grounds on
which to vacate the judgment.

California Code of Civil Procedure(CCP)  473(b), 473.1 & 473.5.

California Code of Civil Procedure Section 473 provides for relief
from default when the default was taken as the result of "mistake,
surprise, inadvertence, or excusable neglect."  California law favors
the resolution of disputes on the merits, rather than on
technicalities and procedural issues.

Examples of mistake, inadvertence, surprise, or excusable neglect include:
    
    1.	The summons was not served in time for you to defend against the suit.

    2.  Service of the summons was defective. 

    3.  Your attorney failed to inform you about the lawsuit or trial date.


For further reading, please see:

( http://home.earthlink.net/~geoffbryan/473.HTML )


If you insist on not hiring an attorney, the following is a breakdown
of what you will need to file to vacate a Default Judgment:

    1.	Notice of Motion to Set Aside Default and Default Judgment
(Form 56.77 in 3 California Civil Procedure Before Trial).

    2.	 Memorandum of Points & Authorities (7 California Points &
Authorities , Chap. 70.

    3.	Proposed responsive pleading (In your case, an Answer)

    4.	Affidavits or declarations in support of motion.  If the motion
is made under CCP 473(b) it must include facts showing either a
mistake, inadvertence, surprise or excusable neglect.  If the motion
is made under CCP 473.5 it must include facts showing lack of actual
notice not caused by defendant's inexcusable neglect or avoidance of
service.

    5.	 Call the calendar clerk of the judge who handled the case, and
schedule a ?hearing date.? Make sure you leave yourself time to serve
and file the papers at least 21 days before the hearing date. Add
another 5 days if you serve your motion by mail.

    6.	File and serve your notice of motion and supporting papers, as
well as your proposed responsive pleading, such as an answer to the
Summons and Complaint, or a demurrer

= = = = = = = = = = 

What it boils down to is, HIRE YOURSELF A LAWYER.  Filing pleadings on
your own can be very tricky and could cause more time delays if done
incorrectly.

If this answer requires further explanation, please request
clarification before rating it, and I'll be happy to look into this
further.

Nenna-GA
Google Answers Researcher

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Comments  
Subject: Re: What response is available as a defendant listed on an "Entry of Default"
From: cynthia-ga on 07 Jul 2005 17:17 PDT
 
Does it look like this, but all filled out?

982(a)(6)
http://www.courtinfo.ca.gov/forms/documents/982a6.pdf

A default judgment is what a plaintiff applies for, if the defendant
does not respond to a suit. If you are the defendant, this is your
LAST CHANCE.

If you don't respond, you will be found liable for WHATEVER the claim is. 

Contact an attorney ASAP!

~~Cynthia
Subject: Re: What response is available as a defendant listed on an "Entry of Default"
From: expertlaw-ga on 08 Jul 2005 06:18 PDT
 
Do you have insurance which might cover the underlying claim? For many
claims that would be a homeowner's policy, or for an auto
accident-related claim your car insurance policy. If so, you need to
notify your insurance company of the claim ASAP, not only because they
may provide you with immediate legal assistance, but also because
failure to do so may waive your ability to later obtain legal help or
indemnification for any judgment.

One way or another, as cynthia-ga indicates, you need to act quickly.
Given the status of the case - that is, with an application for
default pending - I recommend using a lawyer.

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