Jump to content
LuvTahoe

Never served-found out about case 20 years later!

Recommended Posts

Greetings! 

I just found out (it's 2017) that a civil case was filed against me in 1997, twenty years ago in Santa Clara County Superior Court. 

 

A judgement was made in the case. Of course I knew nothing about the case, since I was never served.   The case was filed by the city regarding destruction of a firearm that was confiscated from a home I was living in. 

 

After doing some research on my own, I've read that I have only two years to request the judgement be vacated/set aside?  

How can that be possible-since I was never served?    I simply do not understand how a time limit can be imposed to have this set aside/vacated if I found out about it today?   This seems very unfair.  

This is what I'm referring to, and I'd truly appreciate your comments.  Thanks!  

 

CODE OF CIVIL PROCEDURE - CCP

PART 2. OF CIVIL ACTIONS [307 - 1062.20]

  ( Part 2 enacted 1872. )

  

TITLE 6. OF THE PLEADINGS IN CIVIL ACTIONS [420 - 475]

  ( Title 6 enacted 1872. )
  
 
CHAPTER 8. Variance—Mistakes in Pleadings and Amendments [[469.] - 475]
  ( Chapter 8 enacted 1872. )

  
473.5.  

(a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.

(b) A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party’s lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.

(c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.

(Amended by Stats. 1990, Ch. 1491, Sec. 5.)

 

Share this post


Link to post
Share on other sites

While it was filed in civil court, it wasn't a "civil case."  It was more likely a 8100 petition to retain and destroy a confiscated weapon.  Service of the petition can be by mail to the address where the weapon was confiscated.  If no response is filed within 30 days, the cops win by default and the weapon is either kept by the cops to use or it is destroyed.  This isn't something you can set aside years later.  The gun is gone.

Share this post


Link to post
Share on other sites
4 hours ago, LuvTahoe said:

How can that be possible-since I was never served?    I simply do not understand how a time limit can be imposed to have this set aside/vacated if I found out about it today?   This seems very unfair.  

 

The reason for time limits is so people don't sit on their thumbs for long periods and then expect things to go their way.

 

If this was your gun, why didn't you follow up on it after it was confiscated? Your lack of initiative is on you.

Share this post


Link to post
Share on other sites

That's just it...It wasn't my gun.  If it had been, I would have stated so.  

 It was removed from a home I was renting a room in.   I wasn't even there at the time.   In fact, I wasn't even in the country.   

Share this post


Link to post
Share on other sites
8 hours ago, LegalwriterOne said:

While it was filed in civil court, it wasn't a "civil case."  It was more likely a 8100 petition to retain and destroy a confiscated weapon.  Service of the petition can be by mail to the address where the weapon was confiscated.  If no response is filed within 30 days, the cops win by default and the weapon is either kept by the cops to use or it is destroyed.  This isn't something you can set aside years later.  The gun is gone.

 

I don't care about the gun, it wasn't mine.   I guess I'm stuck with this attached to my name forever. Lovely.  

Share this post


Link to post
Share on other sites
3 hours ago, LuvTahoe said:

I don't care about the gun, it wasn't mine.   I guess I'm stuck with this attached to my name forever. Lovely.

 

Give me a break.

 

It hasn't hurt you in 20 years.

 

It isn't going to hurt you in the future.

 

Get over it.

 

 

Share this post


Link to post
Share on other sites

Hey adjusterjack-you certainly sound professional!! 

 

I don't like having this attached to my name-I haven't even had a parking ticket in 20 years, and I find it disturbing.  Perhaps you don't care-should something like this happen to you, but I DO.  

 

I came here to get information about a legitimate question, not to be insulted by someone with a badly inflated ego.  Grow up.  

Share this post


Link to post
Share on other sites
6 hours ago, LuvTahoe said:

I don't care about the gun, it wasn't mine.   I guess I'm stuck with this attached to my name forever. Lovely.

It's likely that the firearm was unregistered so all persons who were living there would be named in the petition.  It doesn't result in a judgment against you, it's results in a court order for the cops to retain or destroy the firearm.  There's no way to undo it but Jack IS correct, if you hasn't hurt you in 20 years, it's not going to have any effect in the future. 

Share this post


Link to post
Share on other sites
1 hour ago, LegalwriterOne said:

It's likely that the firearm was unregistered so all persons who were living there would be named in the petition.  It doesn't result in a judgment against you, it's results in a court order for the cops to retain or destroy the firearm.  There's no way to undo it but Jack IS correct, if you hasn't hurt you in 20 years, it's not going to have any effect in the future. 

 

LegalwriterOne,

Thanks so very much for your informative post.   I am VERY glad to learn there is no judgement against me, and having no experience with an issue like this, finding something like that is rather unnerving...but you've helped me to feel better about it.  I've never been sued, arrested, etc. so when I found this-I honestly didn't know what to think.  

 

Have a great evening!  

Share this post


Link to post
Share on other sites
On 2/25/2017 at 2:44 AM, LuvTahoe said:

I've read that I have only two years to request the judgement be vacated/set aside?

 

That's sort of correct (as per the statute you quoted in your post).  However, there is occasionally some wiggle room under Section 473.

 

 

On 2/25/2017 at 2:44 AM, LuvTahoe said:

How can that be possible-since I was never served?

 

I don't really understand the question.  As you know from reading CCP 473.5(a), it is expressly premised on "service of [the] summons . . . not result[ing] in actual notice to [the defendant] in time to defend the action."  If you're asking why the ability to set aside a judgment resulting from service that did not result in actual notice is temporally limited, it's because there is a public policy in favor of the finality of judgments.

 

 

On 2/25/2017 at 2:44 AM, LuvTahoe said:

This seems very unfair.

 

I can't say that's an unreasonable opinion.  That said, if you had regularly checked your credit report (it is recommended that you do so at least once a year), you'd have discovered the existence of the judgment no more than a year after the recording of an abstract of judgment (which usually is done within a month or two after the date of entry of judgment).

 

 

On 2/25/2017 at 2:44 AM, LuvTahoe said:

I'd truly appreciate your comments.

 

The judgment entered in 1997 expired -- i.e., became unenforceable -- after 10 years unless the judgment creditor renewed the judgment.  Did the creditor renew the judgment?  If not, then you have nothing to worry about.

 

 

On 2/25/2017 at 6:27 PM, LuvTahoe said:

I don't like having this attached to my name

 

What does "attached to my name" mean?  If, as "LegalwriterOne" surmised, this was a petition under section 8100 of the Welfare & Institutions Code, it doesn't appear that this was a money judgment, and it was properly filed against you since you lived at the premises from which the firearm was confiscated.  Even if you had been served at the time, since it wasn't your gun, you presumably would not have opposed the petition (right?), so this would still be "attached to [your] name" in exactly the same way.  So what exactly is the problem?

 

 

On 2/25/2017 at 6:27 PM, LuvTahoe said:

Perhaps you don't care-should something like this happen to you, but I DO.

 

Well...you're the one who apparently lived with someone who got the gun confiscated for whatever reason....

Share this post


Link to post
Share on other sites
5 hours ago, pg1067 said:

Well...you're the one who apparently lived with someone who got the gun confiscated for whatever reason....

 

Yup-renting a room...in the only place I could afford-and was available at the time...some of us are flat-broke while going to college...

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...

×
×
  • Create New...