Collection Lawsuit Defense Guide
COLLECTION LAWSUIT DEFENSE GUIDE
TABLE OF CONTENTS
I. SHOULD YOU ANSWER THE COMPLAINT? . . . . . . . . . . . . . . . . . . . . .. . . . . 1
II. POTENTIAL DEFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
III. TIME TO ANSWER & HOW TO GET MORE TIME . . . . . . . . . . . . . . . . . . . . . . 3
IV. WHETHER TO SETTLE AND HOW YOU CAN SETTLE YOUR CASE . . . . . . . 4 - 5
V. SAMPLE LETTERS YOU CAN SEND TO SETTLE YOUR CASE . . . . . . . . . . . 6 - 7
VI. WHAT IT MEANS TO BE ‘JUDGMENT-PROOF’, AND HOW TO PROTECT
YOURSELF FROM WAGE GARNISHMENTS AND BANK LEVIES . . . . . . . . . . . . . 8-12
VII. HOW TO ANSWER, INCLUDING SAMPLE ANSWER PACKET . . . . . . . . . . 13 - 21
VIII. TIPS FOR DEALING WITH DEBT COLLECTORS . . . . . . . . . . . . . . . . . . . . . . 22
IX. SAMPLE LETTER REQUESTING ADDITIONAL TIME TO ANSWER . . . . . . . 23
X. SAMPLE LETTERS TO DEBT COLLECTORS . . . . . . . . . . . . . . . . . . . . . . . . 24 - 25
XI. COLLECTION COMMUNICATION LOG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
XII. A LEGAL DOCUMENT YOU CAN’T IGNORE . . . . . . . . . . . . . . . . . . . . . . . . 27
1
SHOULD I ANSWER THE COMPLAINT? DO I NEED TO ANSWER THE COMPLAINT?
If you don’t owe the debt over which you are being sued or have a complete defense (see
“Most Common Defenses to Collection Complaints” on page 2), you should of course answer
the complaint.
If you have no assets, you might not need to answer the complaint. See “What does it
mean to be ‘Judgment-Proof’” on page 8.
QUESTION: What if I feel I owe the debt and want to settle? Should I still file an
answer?
ANSWER: You MAY get a better deal if you answer, so you should probably answer if
you want to work out a settlement agreement. BUT filing an answer typically requires you to pay
the court a fee, which can range from $225 to $435 depending on the amount claimed in the
lawsuit. Therefore you may want to explore an extension of time to answer while you negotiate.
See ‘Requesting an Extension to Answer’ on page 3.
QUESTION: What can they take from me if I do not answer?
ANSWER: Banks and collection agencies historically have enforced judgments in the
following three ways, and only the following three ways:
• Wage Garnishment: the company holding the judgment can garnish up to 25% of your
post-tax wages. There are additional protections for low-wage workers; see pages 9 & 10 for
additional details.
• Bank Levy: if the company holding the judgment knows (or finds out) where you bank
they can completely drain your bank account. There are protections for individuals who get
federal benefits and some types of state welfare benefits. See page 11 for additional details.
• Real Property Lien: A lien is a kind of security interest like a mortgage. It allows the
company holding the judgment to get paid if your house gets sold or refinanced.
QUESTION: Can the company holding the judgment use it to take my house or car?
ANSWER: This is theoretically possible but it almost surely won’t happen. The
KGACLC is not aware of a single instance of this happening to enforce a credit card debt against
a Santa Clara County resident.
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MOST COMMON DEFENSES TO CREDIT CARD COLLECTION SUITS
A. The Statute of Limitations
A suit based on your credit card account is probably subject to California’s statute of
limitations, which is four years. The four years starts to run from the later of: A) the date of your
last payment; or B) the last time you used the card. Let’s say you last used your card in July of
2014 and last paid in October of 2014. A suit filed in December of 2018 is more than four years
from either of those dates and therefore you can completely defeat the suit by asserting the
defense that the claim is barred by the statute of limitations.
If you have a copy of your credit card terms and conditions (or can get it online) you
should check to see if the terms say that Delaware or Virginia law applies. If so, the statute of
limitations is just three years.
B. Identity theft
If you are being sued about a debt you know nothing about, you are probably a victim of
identity theft. In addition to answering, you should file a police report with the police department
in the town or city in which you live. In addition, you should visit:
https://www.identitytheft.gov/ .
C. Special Rule for Credit Card Purchases
Do you have a dispute about a specific charge on your credit card statement? For
example, did a merchant fail to deliver the goods you charged, or were the goods defective? The
Special Rule, which is set out at 15 USC §1666i (just google ‘15 USC 1666i’) allows you to raise
these defenses in the credit card collection suit.
If you think you have a good defense, you should answer. See pages 3 & 4 below
2
HOW LONG DO I HAVE TO ANSWER THE COMPLAINT?
Your last date to answer depends on when and how you were ‘served’. If someone
handed you the summons and complaint (personal service) you have 30 days from the day the
papers were handed to you. If the 30 day falls on a weekend or holiday, you can file your
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answer on the next day the courthouse is open.
If someone handed the papers to a housemate or co-worker and then mailed a second
copy to you (‘subservice’) you were served on the tenth day after the papers were mailed to you
(if you still have the envelope, check the postmark). Your answer should be filed within 30
calendar days after you were served. If the 30 day after service falls on a weekend or holiday,
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you have until the next day the courthouse is open to file the answer with the court. Even if you
missed the deadline, you can still file your answer until the plaintiff has filed a Request for Entry
of Default. You should know whether or not an Entry of Default has been requested because the
plaintiff is required to send you a copy in the mail. You can also check online at
https://cmportal.scscourt.org/Portal/
REQUESTING AN EXTENSION OF TIME TO ANSWER
The Santa Clara County Code of Professionalism (Section 4) tells lawyers they should
grant reasonable requests for extensions of time. Lawyers regularly seek and receive two week
extensions to answer complaints. Therefore, you should expect to get such an extension too. If
you can find the plaintiff’s lawyers email address that is probably the easiest way to request an
extension. The lawyer’s email address is sometimes on the summons and/or complaint and is
usually listed on the bar website here:
http://members.calbar.ca.gov/fal/MemberSearch/QuickSearch Put the short title and case
number in the subject line and just type something simple like “I am requesting a two-week
extension to respond to the above-referenced complaint. Please let me know.” If you are
considering making a settlement offer it will often makes sense to request an extension of time
while you explore settlement (see examples on pages 6, 7 and & 23).
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SETTLING THE COLLECTION LAWSUIT FILED AGAINST YOU
First off, make sure you don’t have a defense to the suit against you before you to decide
to settle (see page 2). Also, you should not offer to settle if you are judgment-proof (see page 8).
There are two ways most collection suits get settled: in a lump sum, or in payments.
Advantages of lump sum settlements:
* SAVINGS: You can usually get a substantial discount off the debt if you offer one large
payment. Discounts of up 33% are common for original creditors and discounts of up to 70% for
debt buyers are common.
* FINALITY: You can get the case against you dismissed with prejudice (forever) almost
as soon as you make your payment.
Disadvantages of lump sum settlements: The only real disadvantage is that the savings
described above technically constitutes “debt forgiveness”. IRS regulations require the plaintiff
to send you a 1099 for the amount of the forgiveness if it is above $600. The IRS considers
‘debt forgiveness’ to be the same as income.
Example: You owe $2,000 and agree to pay $1,000 to settle. The plaintiff will report to
the IRS that you received income in the form of debt forgiveness in the amount of $1,000.
If you decide to make a lump sum settlement offer, it is crucial that you get the agreement IN
WRITING. See pages 6 & 7 for examples of how to get an agreement in writing.
Advantages of payment plans: In truth, there are not as many advantages to payment plans but
most consumers simply don’t have the money to make a lump sum payment. However, most
plaintiffs will agree to waive (give up) the right to interest, court costs and attorneys fees if a
defendant agrees to a payment plan and makes all the payments on time. Payment plans allow
consumers to make affordable monthly payments over months or years.
Disadvantages of payment plans: Most plaintiffs will not agree to a payment plan unless you
agree that if you miss a payment, judgment will be entered for the full amount of the debt
(including interest, court costs and attorneys fees) immediately. This means that you can make
timely payments for years but miss one payment and have judgment entered for the full amount
of the debt (minus the payments that you did make). Therefore it is crucial that you are able to
afford any payment you agree to make. Plaintiffs will not usually agree to substantially reduce
the debt as part of a payment plan, but they will sometimes agree to small discounts. (For
example, if you owe $3,135, you can ask the plaintiff to accept payment totaling $2,000, but it is
highly unlikely such an offer would be accepted; it is much more likely that a plaintiff would
accept payments totaling $3,000).
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Negotiating tips
• If offering a lump sum, start by offering to pay a portion of the original debt. Creditors
will sometimes accept as little as 1/3 of the debt.
• Some collection employees get bonuses based on their collections in a month; therefore
you may get a better deal toward the end of the month if you promise to pay before the
last day of the month.
• If offering a payment plan decide beforehand the most you can pay, and don’t go any
higher than you can afford. If you miss a payment, a judgment will be entered against
you.
• Make sure that any agreement you make is in writing. Send your agreement by mail or
email, and request the debt collector respond to your agreement in writing.
• If you are seriously considering bankruptcy, say so.
• Never disclose where you work or bank. If you do make a payment, don’t send a check
from your own bank. Send a money order.
Review the sample letters below.
You should use these letters only if you are willing and able to negotiate a settlement. Do not
offer to pay more than you can. Rewrite the letter as necessary to fit your situation. Keep a copy
of your letter and all communications with your creditor / debt collector.
A sample lump sum settlement offer is on page 6.
A sample payment plan settlement offer is on page 7.
You should address either letter to the lawyer who is representing the plaintiff.
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_____________________________
_____________________________
_____________________________
Date:__________________________
_____________________________
_____________________________
_____________________________
Re: ______________________________
(Case Number or Lawyer’s File Number)
To Whom it May Concern:
This letter is to inform you that I am experiencing significant financial hardship and I am unable
to pay on my account as obligated. I propose the following settlement agreement.
I offer to pay a lump sum amount of $__________ to satisfy my obligation to you. This is all
that I can pay due to my financial situation, and I do not foresee my situation improving in the
near future. Please respond by mail to my offer. If you choose to accept it, please indicate in
writing that you are releasing me from any further obligation on this account in exchange for my
payment of the above-referenced amount.
Please cease all communication by phone regarding this matter. I thank you in advance for your
anticipated cooperation and understanding in this matter.
Sincerely,
______________________
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_____________________________
_____________________________
_____________________________
Date:__________________________
_____________________________
_____________________________
_____________________________
Re: ______________________________
(Case Number or Lawyer’s File Number)
To Whom it May Concern:
This letter is to inform you that I am experiencing significant financial hardship and am unable to
pay on my account as obligated. I propose the following settlement agreement.
I offer to pay the entire principal balance in monthly payments in the amount of $__________ to
satisfy my obligation to you. This is all that I can pay due to my financial situation, and I do not
foresee my situation improving in the near future. Please respond in writing to my offer.
Please cease all communication by phone regarding this matter. I thank you in advance for your
anticipated cooperation and understanding in this matter.
Sincerely,
______________________
7
ARE YOU ‘JUDGMENT-PROOF’?
‘Judgment-proof’ is a bit of misleading term because it doesn’t mean the plaintiff can’t get a
judgment against you; it means the plaintiff can’t collect a judgment against you. A ‘typical’
judgment-proof person is an individual with no real property and no wages who receives Social
Security and keeps less than two months’ worth of Social Security in his/her bank account.
However, some wage-earners are also judgment-proof. The next few pages describe how
creditors enforce judgments and should give you enough information to know whether or not you
are judgment-proof. If you are permanently judgment-proof, you can safely ignore any lawsuits
that are filed against you. If, after reading this guide, you are not sure whether or not you are
judgment-proof, call us for an advice appointment.
ENFORCEMENT OF JUDGMENTS
As stated above, the collection industry focuses exclusively on three judgment enforcement
methods: wage garnishments, bank levies and real property liens.
Real Property Liens
If you own real property, you can be sure that the judgment creditor will record an ‘abstract of
judgment’, which places a lien on your home. As a practical matter, a judgment creditor cannot
force the sale of your home because of an unpaid judgment . However, the lien will remain on
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your home until you pay the underlying judgment OR sell OR refinance the home. If you sell or
refinance, the judgment creditor will receive payment on the judgment out of escrow. Judgments
bear interest at a high rate: ten percent. This means a $10,000 lien will create a $20,000 lien after
ten years.
On the one hand, you are not judgment-proof if you have a lot of equity in your home. This is
because the creditor will get paid when the house is eventually sold or refinance. On the other
hand, you may decide to allow a plaintiff to get a judgment against you if you don’t have a
defense and can’t afford to settle the debt. You can still send the ‘judgment-proof letter’ on page
24 to stop collection communications.
Depending on the amount of equity in your home you may or may not be a good candidate for
Bankruptcy. If you want advice on whether or not you are a good candidate for bankruptcy, you
can call the Law Center for an appointment (408) 288-7030 or you can call the Santa Clara
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County Bar’s Lawyer Referral Service: 408.971-6822.
(Dang v. Smith (2010) 190 Cal.App.4th 646, 663)
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The Law Center won’t represent you in a Bankruptcy case but we will advise you as to
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whether or not you are a good candidate for Bankruptcy.
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CALIFORNIA WAGE PROTECTIONS
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The forty times the minimum wage rule: Nobody can garnish your wages unless you are
earning more than forty times the minimum wage per week at that particular job. For instance,
if you are making minimum wage at two jobs and you work 30 hours a week at each job, neither
paycheck can be garnished. Because many cities have minimum wage rates that are higher than
the California minimum wage, the amount of wages that are protected depends on where you
work. Please consult the chart below to determine how much of your wages are protected.
Where you work 2018 2019 2020
Hourly Weekly Monthly Hourly Weekly Monthly Hourly Weekly Monthly
California
$10.50-
$11*
$420-
$440*
$1,820 -
$1,906*
$11 -
$12*
$440 -
$480*
$1,906 -
$2,080*
$12 -
$13*
$480 -
$520*
$2,080 -
$2,253*
Cupertino
$13.50 $540 $2,340 $15 $600 $2,600 TBD** TBD** TBD**
Los Altos
$13.50 $540 $2,340 $15 $600 $2,600 TBD** TBD** TBD**
Milpitas
$12 $480 $2080 $13.50 $540 $2,340 $15 $600 $2,600
Mountain View
$15 $600 $2,600 TBD** TBD** TBD** TBD** TBD** TBD**
Palo Alto
$13.50 $540 $2,340 $15 $600 $2,600 TBD** TBD** TBD**
San Jose
$13.50 $540 $2,340 $15 $600 $2,600 TBD** TBD** TBD**
Santa Clara
$13 $520 $2,253 $15 $600 $2,600 TBD** TBD** TBD**
Sunnyvale
$15 $600 $2,600 TBD** TBD** TBD** TBD** TBD** TBD**
* Use the bottom end of the range if your employer has 25 or fewer employees; use the top end if it has 26 or more
** TBD means there IS an increase planned but it is To Be Determined by the Consumer Price Index. A good
estimate would be about 2% higher than the prior year’s numbers.
If you work in Santa Clara County and you don’t see the city where you work, use the California
figures. If you work outside of Santa Clara County you should perform an internet search to
determine if the city you work in has a higher minimum wage than California.
If your after-tax (net) pay is less than 40 times the minimum wage your wages are automatically
protected. That means a wage garnishment notice will essentially be ignored by your employer
so long as you earn less than 40 times the minimum wage per week.
We focus on your rights under California law because when it comes to wage
3
garnishment, all of your protections are as strong or stronger under state law than federal law.
9
The Seventy-Five Percent Rule
If you are sued on a consumer debt and a judgment is entered against you, a wage garnishment
can never be for more than 25% percent of your net (after tax) wages. The rule protecting 75%
of your wages is automatic. Unfortunately most consumers cannot afford to live on 75% of their
wages. The necessities rule may protect more than 75% of your net wages.
The Necessities Rule
The good news is that if you can prove you need more than 75% of your wages to pay for
necessities for yourself and those that depend on you, you can protect that amount, up to your
entire paycheck. But this protection is NOT automatic. You must wait until your wages are
garnished and then - within ten days - submit forms to prove that your wages are needed for
necessities . If your claim is unopposed by the judgment creditor, you will stop the garnishment
4
and get your garnished wages back. But if the claim is opposed, there will be a hearing in court
where you will be expected to bring evidence of all your income and expenses. This procedure
could take a month or two, during which time the garnishment will continue. Finally, many
judges seem reluctant to allow a judgment debtor to keep all of their wages. In summary, even if
you feel you can prove that you need all your wages to support yourself today, you should not
assume the necessities rule will protect you in the future because:
* your wages may increase
* your expenses may decrease
* the court has broad discretion to decide what your necessities budget should be.
To see an example of completed forms to stop a garnishment, see
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https://saclaw.org/wp-content/uploads/sbs-claim-of-exemption-wage-garnishment.pdf
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BANK ACCOUNT PROTECTIONS
The Two Months’ Worth of Federal Benefits Rule
This rule protects individuals who get direct deposit of federal benefits in their account. The
most commonly received federal benefits are Social Security and/or SSI and Veterans Benefits.
If a judgment creditor tries to levy on your bank account and you have less than two months’
worth of Social Security benefits in your account, the bank will automatically protect all of your
funds.
Example: You are single and get $900 in Social Security deposited in your account each month.
So long as you keep your balance under $1,800, you bank account is completely protected.
Example: You are married and get $1,000 in Social Security deposited in your account each
month and your spouse gets $900 directly deposited in the same account. So long as you keep
your balance under $3,800, your bank account is completely protected.
Note that this rule ONLY protects accounts which receive direct deposit of federal benefits. If
you have other accounts, they are not protected by the rule.
The Tracing Rule
The legislature protects certain kinds of income from being seized by a judgment. Among the
income protected are:
* unemployment insurance benefits
* most retirement benefits
* wages in an amount under 40 times the minimum wage per week (see pp. )
* disability benefits
For a complete list of protected income and property, see ‘Exemptions from the Enforcement of
Judgments’: http://www.courts.ca.gov/documents/ej155.pdf
If you can trace the funds in your bank account back to an exempt (protected) category, you can
protect those funds. This protection is NOT automatic. You must fill out forms within ten days
of a Notice of Levy proving that the money in the bank is exempt.
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For an example of completed forms to get funds back after a bank levy, see
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https://saclaw.org/wp-content/uploads/sbs-claim-of-exemption-bank-levy.pdf
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WHAT TO DO IF YOU ARE JUDGMENT-PROOF
If you are judgment-proof and you don’t expect your financial situation to improve in the future,
there is no need to file an answer to any collection complaints you receive. There is no such
thing as debtor’s prison, and you can safely ignore complaints and other court-related
documents.
6
If you are receiving unwanted phone calls or other communications that you want to stop, send
the letter on page 24 to the creditor or debt collector who is contacting you. Be sure to:
• make a copy of the filled-out, signed letter before you mail it
• send the letter in such a way that you can prove it was received such as by
· sending the letter certified mail, return receipt requested
· faxing the letter and saving the transmission sheet
· emailing the letter, if the creditor/debt collector maintains an email address
If the creditor or debt collector contacts you after receiving your letter, you are entitled to
monetary penalties. Document those contacts on the collection log on page 26.
There is one exception to this rule. It is theoretically possible you will be served with an
6
Order for Examination (see sample on page 27) in which case you must appear in court on the
day indicated on the Order. Fewer than 1% of consumer judgments result in an Order for
Examination, so it is highly unlikely you will receive one.
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HOW DO I FILE AN ANSWER?
Q: I know I want to file an answer. What do I have to do?
A: The clerk of the court at 191 N. First Street will need three things from you:
1) a completed General Denial form (see page 4 with attachment pages);
2) a completed Proof of Service (see page 17. Note that the person who serves your
answer and signs the Proof of Service must be A) over 18 years old; and B) not a party to the
action); and,
3) payment of the appropriate fee OR a completed fee waiver application with a proposed
order.
A sample completed answer packet including a fee waiver application appears on pages 14-21
Fees
As of the date of publication, the fee for filing an answer as follows:
* if you are being sued for LESS THAN $10,000: $225
* if you are being sued for MORE than $10,000 but LESS than $25,000: $370
* if you are being sued for MORE THAN $25,000: $435
If you receive public benefits, have a very low income, or cannot afford to pay the fee, fill out a
fee waiver application and proposed order as shown on pages 18-21.
THE FOLLOWING PAGES SHOW YOU
HOW TO FILE AN ANSWER AND, IF
NECESSARY, AN APPLICATION TO
WAIVE THE COURT FILING FEE
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PLD-050
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY
TELEPHONE NO.: FAX NO.(Optional):
E-MAIL ADDRESS (Optional):
ATTORNEY FOR (Name):
SUPERIOR COURT OF CALIFORNIA, COUNTY OF
STREET ADDRESS:
MAILING ADDRESS:
CITY AND ZIP CODE:
BRANCH NAME:
PLAINTIFF/PETITIONER:
DEFENDANT/RESPONDENT:
CASE NUMBER:
GENERAL DENIAL
Form Adopted for Mandatory Use
GENERAL DENIAL
Code of Civil Procedure, §§ 431.30, 431.40
Judicial Council of California
PLD-050 [Rev. January 1, 2009]
www.courtinfo.ca.gov
If you want to file a general denial, you MUST use this form if the amount asked for in the complaint or the value of the property
involved is $1,000 or less.
You MAY use this form for a general denial if:
1. The complaint is not verified; or
2. The complaint is verified and the case is a limited civil case (the amount in controversy is $25,000 or less),
BUT NOT if the complaint involves a claim for more than $1,000 that has been assigned to a third party for collection.
(See Code of Civil Procedure sections 85-86, 90-100, 431.30, and 431.40.)
1. DEFENDANT (name):
generally denies each and every allegation of plaintiff's complaint.
2. DEFENDANT states the following FACTS as separate affirmative defenses to plaintiff's complaint (attach additional
pages if necessary):
Date:
(TYPE OR PRINT NAME) (SIGNATURE OF DEFENDANT OR ATTORNEY)
If you have a claim for damages or other relief against the plaintiff, the law may require you to state your claim in a special pleading
called a cross-complaint or you may lose your right to bring the claim. (See Code of Civil Procedure sections 426.10-426.40.)
The original of this General Denial must be filed with the clerk of this court with proof that a copy was served on each plaintiff's
attorney and on each plaintiff not represented by an attorney. There are two main ways to serve this General Denial: by personal
delivery or by mail. It may be served by anyone at least 18 years of age EXCEPT you or any other party to this legal action. Be sure
that whoever serves the General Denial fills out and signs a proof of service. You may use the applicable Judicial Council form (such
as form POS-020, POS-030, or POS-040) for the proof of service.
Page 1 of 1
Carla Consumer
123 The Alameda, Apt. 12
San Jose, CA 95126
(408) 555-1213
In Pro Per
Santa Clara
191 North First Street
San Jose, CA 95126
DTS
Debt Buyer
Carla Consumer
18cv123456
Carla Consumer
X
See attached
October 30, 2018
Carla Consumer
Carla Consumer
Type in your name,
address and phone
number here. "In Pro
Per" means you are
representing yourself.
Use this information if
you are being sued in
Santa Clara County
This is called a 'short title'. If there is more than one defendant you
should just type the name of the first person listed as a defendant.
Be sure to type in the case
number here
Type your name again but make sure it matches the
complaint EXACTLY. For example type "Carla T.
Consumer AKA Carla Consumer" if so named on the
complaint. If the plaintiff made a mistake with your
name you should put your actual name first and then
type "erroneously sued as Carla T. Consumer". Each
defendant who wants to answer will have to complete
their own form.
We recommend that you print out and
attach the affirmative defenses on the
following pages rather than trying to
type them all in here.
Type your name one more time, type the date, sign
and don't forget to attach the affirmative defenses.
Page 14
DEFENDANT’S ATTACHMENT TO GENERAL DENIAL
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ATTACHMENT 1 TO GENERAL DENIAL
(Failure to State a Cause of Action)
AS AND FOR A FIRST AND SEPARATE AFFIRMATIVE DEFENSE,
Defendant alleges that the complaint and each cause of action thereof fails to state a cause of
action.
(Statute of Limitations)
AS AND FOR A SECOND AND SEPARATE AFFIRMATIVE DEFENSE,
Defendant alleges that each and every cause of action is barred by the applicable statute of
limitations.
(Laches)
AS AND FOR A THIRD AND SEPARATE AFFIRMATIVE DEFENSE,
Defendant alleges that each and every cause of action is barred by the doctrine of laches.
(Failure to Exhaust Remedies)
AS AND FOR A FOURTH AND SEPARATE AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiff has failed to exhaust administrative and/or contractual
remedies.
(Rescission)
AS AND FOR A FIFTH AND SEPARATE AFFIRMATIVE DEFENSE,
Defendant alleges that the underlying contract - if any - was rescinded or is subject to
rescission pursuant to each of the subsections of Cal. Civil Code §1689(b), including but not
limited to fraud in the inducement, duress, and mistake.
DEFENDANT’S ATTACHMENT TO GENERAL DENIAL
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(Payment)
AS AND FOR A SIXTH AND SEPARATE AFFIRMATIVE DEFENSE,
Defendant alleges that the amount owing on the contract, if any, was paid in full or in part.
(Offset/Recoupment)
AS AND FOR A SEVENTH AND SEPARATE AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiff’s claims are offset by any damages recoverable by Defendant.
The amount of offset which Defendants are entitled to recoup will be according to proof at
trial.
(Waiver)
AS AND FOR AN EIGHTH AND SEPARATE AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiff has waived - in whole or in part - its right to recover on the
alleged contract.
(Estoppel)
AS AND FOR A NINTH AND SEPARATE AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiff is estopped from recovering on the alleged contract.
(Special Rule for Credit Card Purchases)
AS AND FOR A TENTH AND SEPARATE AFFIRMATIVE DEFENSE,
Defendant alleges that Plaintiff is subject to all claims and defense that Defendant could assert
against the merchant(s) who honored the credit card, pursuant to 15 USC §1666i.
POS-030
A
TTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY
T
ELEPHONE NO.: FAX NO.(Optional):
E
-MAIL ADDRESS (Optional):
A
TTORNEY FOR (Name):
SUPERIOR COURT OF CALIFORNIA, COUNTY OF
S
TREET ADDRESS:
M
AILING ADDRESS:
C
ITY AND ZIP CODE:
B
RANCH NAME:
PETITIONER/PLAINTIFF:
RESPONDENT/DEFENDANT:
C
ASE NUMBER:
PROOF OF SERVICE BY FIRST-CLASS MAIL - CIVIL
(Do not use this Proof of Service to show service of a Summons and Complaint.)
1. I am over 18 years of age and not a party to this action. I am a resident of or employed in the county where the mailing
took place.
2. My residence or business address is:
3. On (date) : I mailed from (city and state):
the following documents (specify):
The documents are listed in the Attachment to Proof of Service by First-Class Mail - Civil (Documents Served)
(form POS-030(D)).
4. I served the documents by enclosing them in an envelope and (check one) :
a. depositing the sealed envelope with the United States Postal Service with the postage fully prepaid.
b. placing the envelope for collection and mailing following our ordinary business practices. I am readily familiar with this
business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is
placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in
a sealed envelope with postage fully prepaid.
5. The envelope was addressed and mailed as follows:
a. Name of person served:
b. Address of person served:
The name and address of each person to whom I mailed the documents is listed in the Attachment to Proof of Service
by First-Class Mail-Civil (Persons Served) (POS-030(P)).
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
(TYPE OR PRINT NAME OF PERSON COMPLETING THIS FORM) (SIGNATURE OF PERSON COMPLETING THIS FORM)
Form Approved for Optional Use
PROOF OF SERVICE BY FIRST-CLASS MAIL - CIVIL
Code of Civil Procedure, §§ 1013, 1013a
Judicial Council of California www.courtinfo.ca.gov
POS-030 [New January 1, 2005]
(Proof of Service)
Carla Consumer
123 The Alameda, Apt. 12
San Jose, CA 95126
(408) 555-12134
In Pro Per
Santa Clara
191 North First Street
San Jose, CA 95126
DTS
Debt Buyer
Carla Consumer
18cv123456
123 The Alameda, Apt. 13
San Jose, CA 95126
September 1, 2018 San Jose CA
General Denial
X
Lionel Hutz, Esq.
Dewey, Cheatem & Howe
123 Wall Street
Los Angeles, CA 99999
September 1, 2018
Nancy Neighbor
Even though you won't be the one
mailing this, your information still
goes here.
You will need to find a friend or relative who meets the two highlighted
criteria. We'll call him/her 'the server'. It is that person's information that
goes in section 2 and the rest of the form.
You may want the server to complete the date in section 3, since he/she will be
doing the mailing.
This goes to the attorney representing the plaintiff. If there
is more than one attorney listed, you can pick any one to
mail it to.
Page 17
FW-001
Request to Waive Court Fees
Clerk stamps date here when form is filed.
Fill in court name and street address:
Case Number:
Judicial Council of California, www.courts.ca.gov
FW-001,
Page 1 of 2
Revised March 2, 2018, Mandatory Form
Request to Waive Court Fees
Government Code, § 68633
Fill in case number and name:
Case Name:
Street or mailing address:
Phone:
1
Your Information
Name:
CONFIDENTIAL
City: State: Zip:
Your Lawyer, if you have one (name, firm or affiliation, address, phone number, and State Bar number):
4
What court's fees or costs are you asking to be waived?
3
If you are getting public benefits, are a low-income person, or do not have
enough income to pay for your household’s basic needs and your court fees, you
may use this form to ask the court to waive your court fees. The court may order
you to answer questions about your finances. If the court waives the fees, you
may still have to pay later if:
You cannot give the court proof of your eligibility,
Your financial situation improves during this case, or
You settle your civil case for $10,000 or more. The trial court that waives
your fees will have a lien on any such settlement in the amount of the
waived fees and costs. The court may also charge you any collection costs.
(person asking the court to waive the fees):
2
Your Job,
Name of employer:
if you have one (job title):
Employer's address:
a. The lawyer has agreed to advance all or a portion of your fees or costs (check one): Yes No
b. (If yes, your lawyer must sign here) Lawyer's signature:
If your lawyer is not providing legal-aid type services based on your low income, you may have to go to a
hearing to explain why you are asking the court to waive the fees.
Superior Court (See Information Sheet on Waiver of Superior Court Fees and Costs (form FW-001-INFO).)
Supreme Court, Court of Appeal, or Appellate Division of Superior Court (See Information Sheet on Waiver
of Appellate Court Fees (form APP-015/FW-015-INFO).)
Family Size
1
2
$1,264.59
Family Income
$1,714.59
Family Size
3
4
$2,164.59
$2,614.59
Family Income
Family Size
5
6
$3,064.59
$3,514.59
Family Income
If more than 6 people
at home, add $450.00
for each extra person.
5
Why are you asking the court to waive your court fees?
I receive (check all that apply; see form FW-001-INFO for definitions):
My gross monthly household income (before deductions for taxes) is less than the amount listed below. (If
you check 5b, you must fill out 7, 8, and 9 on page 2 of this form.)
a.
b.
Medi-Cal
Food Stamps Supp. Sec. Inc.
SSP County Relief/Gen. Assist. IHSS CalWORKS or Tribal TANF
c.
I do not have enough income to pay for my household’s basic needs and the court fees. I ask the court to:
(check one and you must
fill out page 2):
waive all court fees and costs waive some of the court fees
let me make payments over time
6
Check here if you asked the court to waive your court fees for this case in the last six months.
(If your previous request is reasonably available, please attach it to this form and check here:)
I declare under penalty of perjury under the laws of the State of California that the information I have provided
on this form and all attachments is true and correct.
Date:
Print your name here Sign here
Cal. Rules of Court, rules 3.51, 8.26, and 8.818
CAPI
Superior Court of California, County of
Santa Clara
191 North First Street
San Jose, CA 95126
Carla Consumer
DTS
123 The Alameda, Apt. 12
San Jose, CA 95126
(408) 555-1234
18cv123456
Waitress
Debt Buyer v. Consumer
Circle M Restaurant
12 Main Street, Campbell, CA 95551
n/a
X
X
October 30, 2018
Carla Consumer
Type the
information into the
box to the right and
type your
information into
section 1.
If you are 'unemployed' or 'retired' or 'disabled' say so in section
2. Otherwise provide your work information.
Type your case number and short
title into the box above.
If you receive any of the benefits listed in section 5.a. below check
the boxes and sign below. You don't have to fill out the 2nd page
or parts 5.b. or 5.c if you receive any of these benefits.
If your GROSS monthly
earnings are lower than
the amount indicated by
the chart on the left,
check box b and
complete all of page 2.
If you earn more but you
still can't afford to pay
the filing fee, check box
c and complete all of
page 2.
This form is ONLY for folks who
can't afford to pay the court
filing fees listed on page 4.
Skip this form and the order on
pp. 21-22 if you can pay the
court fee.
Page 18
Case Number:
Your name:
If you checked 5a on page 1, do not fill out below. If you checked 5b, fill out questions 7, 8, and 9 only.
If you checked 5c, you must fill out this entire page. If you need more space, attach form MC-025 or attach a
sheet of paper and write Financial Information and your name and case number at the top.
7
Check here if your income changes a lot from month to month.
If it does, complete the form based on your average income for
the past 12 months.
Your Money and Property
10
a.
Cash
b.
All financial accounts (List bank name and amount):
(1)
(2)
(3)
$
$
$
8
Your Gross Monthly Income
a.
List the source and amount of any income you get each month,
including: wages or other income from work before deductions,
spousal/child support, retirement, social security, disability,
unemployment, military basic allowance for quarters (BAQ),
veterans payments, dividends, interest, trust income, annuities,
net business or rental income, reimbursement for job-related
expenses, gambling or lottery winnings, etc.
(
1)
(2)
(
3)
$
$
(
4)
$
$
b. $Your total monthly income:
9
a.
(1)
Household Income
(2)
(3)
List the income of all other persons living in your home who
depend in whole or in part on you for support, or on whom you
depend in whole or in part for support.
(4)
Name
$
$
$
$
b.
Total monthly income of persons above: $
Total monthly income and
household income (8b plus 9b):
Request to Waive Court Fees
FW-001,
Page 2 of 2
To list any other facts you want the court to know, such as
unusual medical expenses, etc., attach form MC-025 or
attach a sheet of paper and write Financial Information and
your name and case number at the top.
Important! If your financial situation or ability to pay
court fees improves, you must notify the court within five
days on form FW-010.
c.
(1)
(
2)
(3)
Cars, boats, and other vehicles
$
$
$
Make/Year
$
$
$
Fair Market
Value
How Much You
Still Owe
d.
Real estate
Address
(
1)
$
Fair Market
Value
(
2)
$
$$
How Much You
Still Owe
e.
Other personal property (jewelry, furniture, furs,
stocks, bonds, etc.):
Describe
(1)
$
Fair Market
Value
(2)
$
$$
How Much You
Still Owe
11
Your Monthly Deductions and Expenses
a.
Rent or house payment & maintenance $
b.
Food and household supplies $
d.
Clothing $
c.
Utilities and telephone $
h.
School, child care $
g.
Insurance (life, health, accident, etc.) $
f.
Medical and dental expenses $
e.
Laundry and cleaning $
Installment payments (list each below):
k.
j.
Transportation, gas, auto repair and insurance $
i.
Child, spousal support (another marriage) $
Paid to:
(1)
$
(2)
$
(3)
$
Paid to:
(1)
(2)
(3)
$
$
$
How Much?
l.
Wages/earnings withheld by court order
n.
Any other monthly expenses (list each below):
Total monthly expenses (add 11a-11n above):
$
Age Relationship
Gross Monthly
Income
$
$
$
Revised March 2, 2018
$
Check here if you attach another page.
m.
List any payroll deductions and the monthly amount below:
$
(2)
$
(3)
$
(4)
$
(1)
Carla Consumer 18cv123456
50.00
Bank of the West 1,250.00
2007 Prism 1,000.00
Earnings 2,500.00
2,500.00
Janie 13 Daughter
Tommy 11 Son
Zuzu 9 Daughter Taxes 250.00
0.00
1,200.00
2,500.00 600.00
175.00
200.00
50.00
50.00
2,525.00
The court is not likely to waive your fee unless you 'total monthly expenses'
equal or exceed your 'total monthly income and household income'.
P. 19
FW-003
Order on Court Fee Waiver
(Superior Court)
Clerk stamps date here when form is filed.
Fill in court name and street address:
Case Number:
Judicial Council of California, www.courts.ca.gov
FW-003,
Page 1 of 2
Revised July 1, 2015, Mandatory Form
Order on Court Fee Waiver (Superior Court)
Government Code, § 68634(e)
Superior Court of California, County of
Fill in case number and name:
Case Name:
Street or mailing address:
1
Person who asked the court to waive court fees:
Name:
City: State: Zip:
1
Lawyer, if person in
e-mail, and State Bar number):
3
A request to waive court fees was filed on (date):
has one
2
Read this form carefully. All checked boxes
are court orders.
Notice: The court may order you to answer questions about your finances and later order you to pay back the waived
fees. If this happens and you do not pay, the court can make you pay the fees and also charge you collection fees. If there
is a change in your financial circumstances during this case that increases your ability to pay fees and costs, you must
notify the trial court within five days. (Use form FW-010.) If you win your case, the trial court may order the other side
to pay the fees. If you settle your civil case for $10,000 or more, the trial court will have a lien on the settlement in the
amount of the waived fees. The trial court may not dismiss the case until the lien is paid.
4
After reviewing your: Request to Waive Court Fees Request to Waive Additional Court Fees
the court makes the following orders:
a. The court grants your request, as follows:
(1) Fee Waiver. The court grants your request and waives your court fees and costs listed below. (Cal.
Rules of Court, rule 3.55. and 8.818.) You do not have to pay the court fees for the following:
Filing papers in Superior Court
Making copies and certifying copies
Court fee for phone hearing
Sheriff's fee to give notice
Reporter’s fee for attendance at hearing or trial, if reporter provided by the court
Giving notice and certificates
Sending papers to another court department
Court-appointed interpreter in small claims court
(2) Additional Fee Waiver. The court grants your request and waives your additional superior court fees
and costs that are checked below. (Cal. Rules of Court, rule 3.56.) You do not have to pay for the
checked items.
Jury fees and expenses
Fees for court-appointed experts
Other (specify):
Court-appointed interpreter fees for a witness
Fees for a peace officer to testify in court
Cal. Rules of Court, rule 3.52
The court made a previous fee waiver order in this case on (date):
(name, address, phone number,
Assessment for court investigations under Probate Code section 1513, 1826, or 1851
Preparing, certifying, copying, and sending the clerk’s transcript on appeal
Holding in trust the deposit for a reporter's transcript on appeal under rule 8.130 or 8.834
Making a transcript or copy of an official electronic recording under rule 8.835
Carla Consumer
123 The Alameda, Apt. 12
San Jose CA 95126
n/a
Santa Clara
191 North First Street
San Jose, CA 95126
DTS
18cv123456
Debt Buyer v. Consumer
The only parts of this form that you need to
fill out are section one and the two boxes to
the right.
Page 20
Your name:
Case Number:
(1) The court denies your request because it is incomplete. You have 10 days after the clerk gives notice of
this order (see date of service on next page) to:
c. The court needs more information to decide whether to grant your request. You must go to court on the date
below. The hearing will be about (specify questions regarding eligibility):
Bring the following proof to support your request if reasonably available:
Warning! If item c is checked, and you do not go to court on your hearing date, the judge will deny your
request to waive court fees, and you will have 10 days to pay your fees. If you miss that deadline, the
court cannot process the court papers you filed with your request. If the papers were a notice of appeal,
the appeal may be dismissed.
Date:
Signature of (check one):
Clerk's Certificate of Service
I certify that I am not involved in this case and (check one): A certificate of mailing is attached.
I handed a copy of this order to the party and attorney, if any, listed in
1
and
2
, at the court, on the date below.
This order was mailed first class, postage paid, to the party and attorney, if any, at the addresses listed in
from (city):
1
and
2
,
, California on the date below.
Clerk, by , Deputy
Date:
Revised July 1, 2015
Order on Court Fee Waiver (Superior Court)
FW-003,
Page 2 of 2
b. The court denies your fee waiver request, as follows:
Warning! If you miss the deadline below, the court cannot process your request for hearing or the court papers
you filed with your original request. If the papers were a notice of appeal, the appeal may be dismissed.
Pay your fees and costs, or
File a new revised request that includes the items listed below (specify incomplete items):
(2) The court denies your request because the information you provided on the request shows that you are
not eligible for the fee waiver you requested (specify reasons):
Pay your fees and costs in full or the amount listed in c. below, or
The court has enclosed a blank Request for Hearing About Court Fee Waiver Order (Superior Court),
form FW-006. You have 10 days after the clerk gives notice of this order (see date of service below) to:
Ask for a hearing in order to show the court more information. (Use form FW-006 to request
hearing.)
Name and address of court if different from above:
Hearing
Date
Dept.:
Date:
Time:
Room:
Judicial Officer Clerk, Deputy
Request for Accommodations. Assistive listening systems, computer-assisted real-time captioning, or sign
language interpreter services are available if you ask at least 5 days before your hearing. Contact the clerk's
office for Request for Accommodation, Form MC-410. (Civil Code, § 54.8.)
This is a Court Order.
18cv123456
Page 21
YOUR RIGHTS WHEN DEALING WITH CREDITORS AND DEBT COLLECTORS
Here are some of the rights you have with respect to creditors and debt collectors:
• You have the right to protection from harassment. No debt collector may use obscene or
profane language in addressing you. They may not threaten you with force. They may not lie
about who they are; call you collect; call you early in the morning or late at night; or, call
repeatedly ring and hang up. Collectors are not able to contact anyone other than you or your
spouse other than to locate you. A debt collector can never tell a third party that the collector
thinks you owe a debt.
• You have the right to be left alone. If you do not want to receive phone calls regarding your
debts, you can request that a debt collector cease communications with you. See page 24 for an
example of ‘cease communications’ letter. Be aware that if you send a debt collector a ‘cease
communication letter’, the collector may feel it has no choice but to sue you. Therefore unless
you are judgment proof (see page 9), you may wish instead rather than ask them to cease all
communication only contact you in writing.
•A You have the right to the truth. No debt collector may lie to you to convince you to pay a debt.
This means, for example, that they cannot tell you a suit is about to be filed against you unless
that is true.
• You have the right to make the collector validate the debt. The debt collector must inform you
of your right to obtain written “verification” of any debt. If you request such verification, the
debt collector must stop trying to collect the debt until they provide it to you so long as you make
the request within 30 days of the collector notifying your of your validation rights. However, you
must make your request for verification IN WRITING. There is an example of such a request on
page 28.
• You do not have to reveal where you work or where you bank. If you are asked for this
information, you do not have to answer, and you should not answer.
HOW TO ENFORCE YOUR RIGHTS
You can sue for penalties and actual damages you have suffered if a debt collector violates the
law. You may be able to find a lawyer AT NO COST TO YOU, since the law says the debt
collector must pay your lawyer if you win. Because the lawyer will only get paid if you win, they
will look for solid proof that the debt collector broke the law. Most lawyers won’t rely on verbal
statements unless you taped them, or you have witnesses. Therefore, if possible, you should tape
conversations with debt collectors, but you must tell the debt collectors you are taping the
conversations. It is not legal in California to tape a confidential conversation without the other
party’s knowledge. Also, you should ALWAYS save ALL letters you receive from a debt
collector. For a referral of Consumer Rights attorneys contact the Santa Clara County Bar
Associations Lawyer Referral service at (408) 971-6822. If you reside outside Santa Clara
County, contact your local Bar Association.
22
SAMPLE
Jane Doe
450 E. Fifth St. Apt. #4
San Jose, CA 95116
Date: ___________________________
VIA FAX [(111) 111 - 1111] & FIRST CLASS MAIL or
VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED or
VIA EMAIL ONLY AT ____________________________
John Smith
ACME Law Group APC
125 W. Hedding Street, Ste. 100
San Jose, CA 95110
Re: ACME Investments LLC v. Jane Doe
Case No.: 17-CV-111111
Dear Mr. Smith:
I am the defendant in the above-referenced matter. I understand my answer is due on or about
December 9, 2018. I am writing to seek a two-week extension to December 23, 2018, to answer
the complaint. Please send an e-mail to jane_doe2@yahoo.com to let me know whether or not
this is acceptable.
Sincerely,
Jane Doe
23
______________________________
______________________________
_____________________________
Date: ____________________________
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
______________________________
______________________________
______________________________
Re: _________________________
Acct.#: _________________________
To Whom It May Concern:
I am writing to request that you cease all contact with me pursuant to California Civil Code
§1788.17 and/or 15 USC §1692c(c ), which require you to cease all contact with a consumer
when you receive a written request to do so.
I do not concede that I owe any “debt” to you. Even if I did, I could not afford to pay you.
Therefore, I will no make ANY further payments on the above-referenced account. I have
consulted with an attorney and I have been informed that I am “judgment-proof”. You may sue
me if you wish, but you will not be able to collect any money from me because I have no assets
or income that can be attached with a judgment.
I recognize that you may choose to refer this account to a collection agency, or some other entity.
Should you choose to do so, YOU MUST INCLUDE A COPY OF THIS LETTER IN MY FILE,
AND THE ACCOUNT MUST BE NOTATED THAT I DO NOT WISH TO BE CONTACTED
IN AN ATTEMPT TO COLLECT A DEBT. If you fail to comply with this request, I will
consider it an intentional attempt to circumvent California’s Fair Debt Collection Practices Act.
Thank you for your anticipated cooperation with respect to my request that you cease any further
contacts with me.
Sincerely,
24
___________________________
______________________________
______________________________
______________________________
Date:
VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED
Re:
Acct.#:
To Whom It May Concern:
Please note for your records that I dispute the alleged debt. Therefore, you are directed not to
report any negative credit information regarding this account to any credit reporting agency
without also reporting that the account is disputed, as required by California Civil Code Section
1785.25(c).
I request validation of the alleged debt to . I specifically request
that you send me an accounting showing that I owe the above-mentioned amount on the above-
mentioned account.
Sincerely,
25
Date of call?
(MM/DD/YY)
Time
of
Call?
Identify the company
and/or caller here if
you know their
identity
Check this box if
you picked up the
call and told the
caller not to call
anymore
Check this box if
they left you a
voice mail
message (save
the message)
Check
this box
if the
caller
hung up
Make a note of anything of interest the
caller said here
1
2
3
4
5
6
7
8
9
10
collection call log 10-1-18
AT-138/EJ-125
ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NO.: FOR COURT USE ONLY
TELEPHONE NO.: FAX NO.:
ATTORNEY FOR (name):
STREET ADDRESS:
MAILING ADDRESS:
CITY AND ZIP CODE:
B
RANCH NAME:
PLAINTIFF
DEFENDANT
C
ASE NUMBER:
APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION
ENFORCEMENT OF JUDGMENT ATTACHMENT (Third Person)
Judgment Debtor Third Person
ORDER TO APPEAR FOR EXAMINATION
1. TO (name):
2. YOU ARE ORDERED TO APPEAR personally before this court, or before a referee appointed by the court, to
a. furnish information to aid in enforcement of a money judgment against you.
b. answer concerning property of the judgment debtor in your possession or control or concerning a debt you owe the
judgment debtor.
c. answer concerning property of the defendant in your possession or control or concerning a debt you owe the defendant
that is subject to attachment.
Date: Time: Dept. or Div.: Rm.:
Address of court is shown above is:
3. This order may be served by a sheriff, marshal, registered process server, or the following specially appointed person (name):
Date:
JUDGE
This order must be served not less than 10 days before the date set for the examination.
IMPORTANT NOTICES ON REVERSE
APPLICATION FOR ORDER TO APPEAR FOR EXAMINATION
4. Original judgment creditor Assignee of record Plaintiff who has a right to attach order
applies for an order requiring (name):
to appear and furnish information to aid in enforcement of the money judgment or to answer concerning property or debt.
5. The person to be examined is
a. the judgment debtor.
b. a third person (1) who has possession or control of property belonging to the judgment debtor or the defendant or (2) who
owes the judgment debtor or the defendant more than $250. An affidavit supporting this application under Code of Civil
Procedure section 491.110 or 708.120 is attached.
6. The person to be examined resides or has a place of business in this county or within 150 miles of the place of examination.
7. This court is not the court in which the money judgment is entered or (attachment only) the court that issued the writ of
attachment. An affidavit supporting an application under Code of Civil Procedure section 491.150 or 708.160 is attached.
8. The judgment debtor has been examined within the past 120 days. An affidavit showing good cause for another examination
is attached.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:
(TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT)
(Continued on reverse)
Form Adopted for Mandatory Use
APPLICATION AND ORDER FOR
Code of Civil Procedure,
Judicial Council of California §§ 491.110, 708.110, 708.120, 708.170
AT-138/EJ-125 [Rev. January 1, 2017]
APPEARANCE AND EXAMINATION
(Attachment-Enforcement of Judgment)
SUPERIOR COURT OF CALIFORNIA, COUNTY OF
Page 1 of 2
www.courts.ca.gov
NAME:
F
IRM NAME:
STREET ADDRESS:
CITY:
E
-MAIL ADDRESS:
STATE: ZIP CODE:
If you are 'judgment-proof' as explained on
page 8 you can ignore every legal document
EXCEPT this one. It is HIGHLY UNLIKELY
you will receive this document but if you do,
you must appear in court on the date
indicated. Call (408) 288-7030 if you want
advice about how to handle such an
appearance
Page 27
