If there’s a civil judgement against us and we were not notified about it until we needed to refinance our home, how can we reverse the judgement?

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If there’s a civil judgement against us and we were not notified about it until we needed to refinance our home, how can we reverse the judgement?

We did not know until we had to refinance our home that there was a civil judgement against us from almost 5 years ago. The company that won the judgement does not have a case because the signature on the contract was forged but since we didn’t know about it they won a default judgement against us. We did not receive any notice on the suit and the suit is in NY and we live in CA. What can we do to get the judgement reserved? If we do decide to settle the case and there’s a future class action lawsuit against this company can we still be qualified to be included?

Asked on December 13, 2011 under Bankruptcy Law, California

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

You will need to file a motion to set aside the default.  Your argument is that you were never served with the summons and complaint (the complaint is the lawsuit attached to the summons) and without notice of the lawsuit, you did not timely file an answer to the complaint within the time set forth in the summons.  If the court rules in favor of your motion to set aside the default, the case will then be back on track and litigation will continue.  You will need to file in the NY court, but you may be able to file by mail or electronically.  In the event of a court appearance, you may be able to participate in the proceeding by telephone without being  physically present in the NY courtroom.  Telephone appearances are at the discretion of the judge.  The court clerk at the NY court should be able to tell you how far in advance of a hearing you need to request a telephone appearance and provide the appropriate forms.

If the company that obtained the default judgment claims that it did not know your whereabouts and you were served by publication, that would be effective service of process even if you didn't see the notice.  Service by publication is running the notice of the lawsuit in a newspaper for a period of time (the amount of time the notice runs varies from state to state) 

If you settle with the company, you won't be eligible to participate in the class action because you can't sue more than once on the same claim and against the same party.  If the class action includes additional causes of actions (claims)  that were not included in your lawsuit/settlement, then you could claim that you should be eligible to be included in the class action.  The class action will list the criteria for being included and/or excluded from the class of litigants.


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