An experienced collections attorney can attest that, generally speaking, the most common basis for moving to vacate is that the defendant claims he/she/it was not served in the origin state. A motion to vacate is a request to the court to withdraw a previous order or judgment it entered. Generally, a motion to vacate will be granted if a party is able to convince the court that s/he did not have a fair chance to present his/her case.
After service of the judgment, the judgment debtor has 30 days (40 if subserved) to file and serve a motion to vacate the judgment. There are a few reasons to vacate a sister state judgment, the most common being that (1) the origin state lacked either subject matter or personal jurisdiction over the defendant; (2) there is an appeal of the judgment pending in the sister state; (3) the sister state court has granted a stay of enforcement, or (4) there is a motion to vacate the judgment pending in the sister state.
Given the short time the creditor has to oppose the motion, it is good practice to request a copy of the filed proof of service in the origin state and confirm with the client or counsel in the origin state that the process server is still around and able to sign a declaration concerning the service. There is nothing worse than getting an opposition and not being able to reach prior counsel or the process server to shore up your defense.
If the judgment debtor does not move to vacate, then after the expiration of the notice period, your attorney can seek the issuance of a writ and/or abstract and commence collection. If there is property in the state of California, but the debtor does not reside in California, you don’t have to wait for service before you obtain a writ of execution. All you have to do is simply check a box on the application and submit the Writ with your application. Once the judgment becomes a California judgment, it accrues interest at the legal rate in California of 10% going forward, and the judgment will remain in effect for a period of ten years after which it will lapse if not renewed prior to its expiration date in accordance with California law.
For more information on how to collect an out of state judgment, contact collections attorney Ronald P. Slates today.