never served

[justmemc]

Jurisdiction

California

A creditor applied for a renewal of judgement against me, and later submitted a proof of service to the court, stating they served me by mail. However, I never received anything in the mail (or otherwise) from them. Is the renewal still valid if I wasn't served, and/or would it be a valid argument to present to the court that I was never served?

 

[Michael Wechsler]

Everything depends upon the words in the statute. Apparently a judgement was entered against you. The only legal question is whether the creditor complied with the statute for the renewal of judgment. If they only needed to serve you by dispatch of USPS mail then your receipt is not a defense. Service is complete upon the receipt of the renewal by the US Postal Service. I am unsure whether the following is the applicable California statute for renewal of judgment. If so it seems that service by first class mail along with proof of service may be sufficient.

683.160. (a) The judgment creditor shall serve a notice of renewal of the judgment on the judgment debtor. Service shall be made personally or by first-class mail and proof of service shall be filed with the court clerk. The notice shall be in a form prescribed by the Judicial Council and shall inform the judgment debtor that the judgment debtor has 30 days within which to make a motion to vacate or modify the renewal.
(b) Until proof of service is filed pursuant to subdivision (a), no writ may be issued, nor may any enforcement proceedings be commenced to enforce the judgment, except to the extent that the judgment would be enforceable had it not been renewed.​

683.170. (a) The renewal of a judgment pursuant to this article may be vacated on any ground that would be a defense to an action on the judgment, including the ground that the amount of the renewed judgment as entered pursuant to this article is incorrect, and shall be vacated if the application for renewal was filed within five years from the time the judgment was previously renewed under this article.
(b) Not later than 30 days after service of the notice of renewal pursuant to Section 683.160, the judgment debtor may apply by noticed motion under this section for an order of the court vacating the renewal of the judgment. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail.
(c) Upon the hearing of the motion, the renewal may be ordered vacated upon any ground provided in subdivision (a), and another and different renewal may be entered, including, but not limited to, the renewal of the judgment in a different amount if the decision of the court is that the judgment creditor is entitled to renewal in adifferent amount.​

 

[adjusterjack]

it seems that service by first class mail along with proof of service may be sufficient.

It is, if it's accomplished by a non-party. In Ca, to renew a judgment, the creditor must do three things.

1 - Apply for the renewal using form EJ-190.
2 - Send notice of renewal on form EJ-195.
3 - Complete the proof of service affidavit on form MC-012.

According to the second page of the form, service may be made by mail or by personal service by a non party.

When serving by mail, you are correct that service is complete upon receipt of the notice by the US Postal Service.

Is the renewal still valid if I wasn't served, and/or would it be a valid argument to present to the court that I was never served?

See Page 2 of form MC-102:

http://www.courts.ca.gov/documents/mc012.pdf

Then go to the courthouse and look in the case file to read the Proof of Service on the form MC-102.

The renewal is valid if the form is properly filled out even if, for some reason, you didn't receive the renewal notice.

You can, however, go ahead and file to set aside the renewal and claim that the Proof of Service is fraudulent (if you believe it so) but I suspect you'll have a hard time proving that.