QUESTION
What are my options on Request for Entry of default?
Asked on Sep 30th, 2013 on Foreclosures - California
More details to this question:
I received request for Entry of default on January 31. I sent it to my attorney requesting explanation. I asked him if he had not filed the answer for demurrer, he told me that the answer was filed but the court did not set up a trial date. He did not ask the court for relief from default. Answer was supposed to be filed on January 15 but document that his assistant emailed me had a court stamp dated January 16. Though the plaintiff was served on January 15, 2013, my attorney did not do anything to vacate the default and he did not explain to me what was happening and I got evicted. Also he filed my QT in a wrong court and the judge dismissed my case on March 4, 2013. He did not re-file it in state court as was instructed by the federal judge. Isn't this considered malpractice? I had paid him but he did not work on my cases. Do I still have time to appeal? I am ready to hire another attorney to represent me. Your response will be greatly appreciated.
1 ANSWER
It's hard to understand from the facts provided exactly what happened. Even if a responsive pleading (answer or demurrer) was due January 15, if it was filed January 16, the court should not have thereafter entered a default. The Request to Enter Default would have to have been filed after the last day to respond but before the answer was filed. Was this an unlawful detainer case? If so, the time to appeal is either 30 or 60 days (depending on the amount of damages claimed) so, in any case, the time to appeal is long expired. Anyway, it is highly unlikely that you have any grounds for appeal, unless the clerk mistakenly entered your default after you had an answer on file. Your attorney may have committed malpractice. However, in order to prevail in a malpractice action, you have to prove you would have obtained a better result in the unlawful detainer case but for your attorney's negligence. You have not stated any facts indicating that the plaintiff did not have the right to evict you. Therefore, even if your attorney did everything correctly, you probably would have been evicted eventually anyway. You should explore this issue with your new attorney so that a decision can be made based on all of the facts.
Answered on Oct 02nd, 2013 at 3:26 PM