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Motion To Vacate Judgment And Dismiss

When Should You File A Motion To Vacate Judgement

Motion to Vacate a Judgment – Vacating a Judgment, Motion to Vacate

Typically the motion must be filed in a timely manner, and no later than 30 days after you receive a Notice of Entry of Judgement in the mail. This notice is generally two weeks after the end of a trial. If you are the defendant and never attended the court due to a failure to be served the plaintiffs legal claim, you have 180 days to film for a motion to vacate judgment. This 180-day deadline also covers cases, fraud, misconduct, and misrepresentation.

Duress Fraud Or Coercion

Defendants will satisfy a good cause showing if they can prove that they entered a plea because of duress, fraud, or other force overreaching their free will.3

In addition, defendants can demonstrate good cause by showing that they were coerced, lured, or threatened into entering a plea.4

The latter may be the case if, for example,

  • a judge improperly pressured a defendant to take a deal,
  • a co-defendant threatened to harm the accused or a family member if he/she did not take responsibility for the offense, or
  • an arresting officer told the defendant that if he/she did not plead guilty, the officer would retaliate against the defendants loved ones.5

How To Ask The Court To Vacate A Default Judgment

If you want to vacate a default judgment in a consumer debt case or a landlord-tenant case, you can make the court papers you need by using the free DIY Form programs. These programs walk you step-by-step through the paperwork you need, give you helpful definitions, explain common defenses and give you legal information. When you finish the program you can get the court forms you need and instructions of what to do next. DIY Forms for: consumer debt, tenants outside NYC, NYC tenants.

If you cant use the DIY Form programs, you can ask the Court Clerk for an Order to Show Cause. Most will have this form for you. You can also visit a Help Center for assistance with this form.

Go to the Civil Court Clerks office in the Court that issued the default judgment and request a complete copy of your court file including the affidavit of service. This will help you to know whether you should ask the court to vacate the default judgment based on excusable default or lack of personal jurisdiction .

You can tell the clerk that you want to file an order to show cause . On the OSC form you can tell the court why they should vacate this judgment based on either excusable default, lack of personal jurisdiction, or both.

OSC based on excusable defaultThe OSC should include 1) a reasonable excuse and 2) a good defense.

The Return Date

You can wait inside of the court room for your case to be called and speak with the court attorney or the judge about your case.

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When Can A Motion To Vacate Judgment Be Granted

Probably the most common situation in which an order vacating judgment can be granted is when the person or party did not receive the legally required notice regarding the lawsuit or other legal action, e.g. a motion for a restraining order, when the lawsuit or action was begun.

When a person initiates any kind of legal action against another person, they are required to give the other person notice of the action and a copy of the legal documents involved. This is called service of process in legal terminology. If a person can show that they never received service of process, they have a good chance of vacating a judgment in the lawsuit in which they were sued.

After serving a person who has been sued, the person who served the notice must file an affidavit of service with the court, in which the server provides a description of the person served, the date and time at which service was made, and the contact information of the process server themselves, i.e., their name, address, and phone number. The affidavit must also include a statement to the effect that the server is legally authorized to perform service of process in the state in question.

In some states, a person can be served by certified mail, restricted delivery. In the case of service of process by certified mail, the green certified mail receipt is returned to the court and is the proof of service.

How To Vacate A Default Judgment

Sample California motion to vacate order of dismissal

Just as the collection agency should have followed specific procedures on their end, you must do the same when you file a motion to vacate a default judgment. If you dont, you could lose your chance to have the default judgment dismissed.

Take your time and be thorough the first time around because its probably your only shot. Dont be too worried, though. Weve pulled together each step you should take to have a successful process.

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File A Motion To Vacate A Judgment

To file a motion and get your default judgment dismissed, you must write a letter explicitly stating your case. Here is the basic information you should include. The first thing to state is all the identifying information associated with your case.

This includes your case name, court reference number, and all relevant parties. After that comes the meat and potatoes of the letter: your reasons for requesting a vacated judgment.

No-Show

If there was a good reason you didnt attend the original hearing and you received a default judgment, let the court know why that happened, especially if circumstances were beyond your control.

If you didnt receive a summons and complaint, it may not be your fault. Each state law varies on what the appropriate procedure is to have this information delivered, so check on yours.

No Hearing

Another reason for vacating a default judgment is if you responded to the summons and complaint, but a judgment was issued even without a hearing. Remember, its your legal right to have a hearing to defend yourself.

If the hearing did take place but you had a valid reason for not attending, you can also state that information here. Maybe you had a family emergency or couldnt take off work without jeopardizing your job.

Whatever the reason, plead your case just try not to sound like youre making frivolous excuses for yourself. Thereafter, you can give a reason as to why the case itself should be dismissed.

How To File The Paperwork

Most likely, you will have to file your motion at the same court which granted the judgment in the first place, which means that if the judgment was granted in Anchorage, Alaska, and you now live in Miami, Florida, you will have to fly to Alaska to both file the paperwork and to attend the court trial.

Go to the courthouse with your typed document and tell the court clerk that you are filing a motion to vacate a judgment. There may be additional forms to fill out at the courthouse, and there will probably be a nominal filing fee. The clerk should know exactly what needs to be done with your paperwork and can answer all of your questions and even help you fill out the forms.

Once your paperwork is in order, the court will notify you of the upcoming court date. The person who originally sued you, the Plaintiff in the original suit, will typically have 35 days to respond.

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Prepare Your Motion To Vacate

The first thing you should do before preparing a motion to vacate is to look up your states rules of civil procedure. It should spell out exactly what you need to do to file a motion. It will also tell you what reasons are valid, and may include the exact language you need to use. If you dont follow the procedures, you can get your motion thrown out on a technicality.

How Do I Get Rid Of A Default Judgment

The Other Kind of Motion to Vacate – Judgments and Lack of Jurisdiction

If it has been 30 days or less, you can get rid of a default judgment by filing a motion. This is a written request to the judge asking them to throw out the judgment. You will have to send a copy of the motion to the other party in the case, and then show up in court for a hearing. Learn more about filing a motion to vacate a default judgment.

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The Importance Of Hiring A Lawyer

You must have legal grounds to file a motion to vacate. Without a good reason based on California law, the motion would be a waste of time. You must hire an experienced criminal appeals lawyer to review your case. Spolin Law P.C. will scrutinize your arrest, trial, and sentencing. Well look for any legal errors, then explain your options. If youre beyond the deadline to appeal, a motion to vacate might be appropriate.

Aaron Spolin is a former prosecutor and award-winning attorney. He has experience helping many people win better outcomes in their cases. Its not always possible to avoid a conviction, but he can help mitigate the consequences.

To learn more about motions to vacate in California, use the online form or call to schedule a free consultation.

Or submit for call back:

What Happens When You Win

You should receive a court document showing that the case was dismissed. Send copies of this document to any collection agency thats contacted you about the case and to the credit bureaus so they will remove any mention of the judgment from your credit report. Even though you demanded that the Plaintiff do this, it only takes a few minutes and a few stamps to ensure that it gets done promptly by doing it yourself.

Please note: WE ARE NOT ATTORNEYS. If you are being sued, its always a good idea to hire an attorney or get some legal assistance. If you cannot afford an attorney, a lot of people have handled their cases pro per or without a lawyer. Our articles are meant to provide basic information on handling litigation.

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Becoming Familiar With Legal Terms

A judgment is the actual court decision stating that the person suing is in the right. It issues the method to right the wrong, such as fines, the actions you need to take to correct the violation or the amount of money you need to pay the Plaintiff.

A writ of restitution is generally used only by landlords. It is basically a court order, in writing, that would be given to a sheriff to evict you if your landlord was trying to get you to move based on non-payment. Below are a few terms you should become very familiar with as they will be used a lot in legal documents and conversations.

  • Vacate means dismiss.
  • Plaintiff is the person suing you.
  • Defendant is the person being sued .
  • What Does It Mean To Vacate A Judgment

    DEFENDANTS MOTION TO RECONSIDER MOTION TO VACATE JUDGMENT AND MOTION ...

    You can essentially get a judgment voided by having it vacated. This can be done in two different ways. The first option is to file an appeal with the goal of having an appeals court void the judgment. You would choose this option if it was a judgment on merits, meaning you defended yourself but lost the lawsuit.

    The second option is to fight the original lawsuit by requesting the original court to vacate a default judgment. You would select this choice if you received a default judgment because you didnt show up in court to fight the charges brought against you.

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    Q& a Setting Aside Default Judgments

    In what situations can a judge set aside a default judgment?

    The courts rules state the circumstances in which a judge can set aside a default judgment. – JCRCP 60-.) A judge can set aside a default judgment for the following reasons, among others:

    • Mistake, inadvertence, surprise, or excusable neglect of the party who failed to defend himself in the case
    • Fraud, misrepresentation, or other misconduct by the party who filed the case
    • The judgment has been satisfied, released, or discharged
    • The summons and complaint were never personally served to the defendant who judgment was entered against

    So to set aside your default judgment, the judge must agree that one of these reasons addresses your particular situation and that your circumstances warrant the judgment being set aside.

    Is there a deadline or time limit for me to ask the judge to set aside the default judgment against me?

    Your deadline for filing a motion to set aside the default depends on the specific reason you are asking the judge to set the judgment aside.

    If you are asking the judge to set aside your default judgment:

    FYI! After a party obtains a judgment, they must prepare a document called a Notice of Entry. They attach a copy of the judgment to the Notice of Entry, file it with the court, and mail it to all parties in the case to give them notice of the default judgment. Thats the written notice of entry referred to above.

    When Will A Judge Grant The Motion

    A judge will grant a Motion to Vacate Judgment upon a showing of good cause.

    Defendants can show good cause by proving that they were:

  • the subject of duress, fraud, or coercion,
  • not aware of the consequences of their plea,
  • not represented by an attorney at the time of their plea, or
  • were represented by an incompetent attorney.
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    District Court Power To Vacate Or Modify Judgments Or Orders

    The inherent power of a district court to vacate or modify its judgments or orders during term may also be exercised after the end of the term, upon the same grounds, upon a motion filed within six months after the entry of the judgment or order.

    The power of a district court under its equity jurisdiction to set aside a judgment or an order as an equitable remedy is not limited by this section.

    Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court by an order nunc pro tunc at any time on the court’s initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the case is submitted for decision in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

    What Is A California Motion To Vacate

    Motion To Vacate Judgment- Vacate Foreclosure Judgment

    A motion is a legal tool that asks a judge to make a decision. A motion to vacate specifically asks a judge to cancel something. If a judge or jury convicted you of a crime or you pleaded guilty then a motion to vacate might ask the judge to cancel the conviction. For a successful motion to vacate, you must have a precise reason based on California law. Another motion to vacate might ask the judge to cancel your sentence if its unlawful based on California law.

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    Real Life Motion To Dismiss Defamation Lawsuit

    In February 2015, comedian Bill Cosby and his legal team filed a Motion to Dismiss a defamation lawsuit brought against him by three women, after he called them liars for claiming that he sexually assaulted them. Cosby makes the Motion to Dismiss based on the fact that such comments were made by his publicist and attorneys, not himself. Additionally, Cosby points out that the comments were made in self-defense, and could therefore not be considered defamation.

    In his Motion to Dismiss, Cosby points out that he need not stand idly by while his accusers publicly attack him. Rather, any individual accused of serious wrongdoing has the right to deny allegations, and to question the integrity of the accusers, without fear of defamation charges. Cosbys legal team makes the point that statements made in self-defense are privileged, and cannot form the basis of a defamation action. In this case, the judge must determine, from the pleadings filed with the court, whether the plaintiffs have stated a claim for which relief can be granted.

    Insufficient Service Of Process

    According to the law, a copy of the Summons and Complaint must be personally delivered to the defendant. This is referred to service of process, and may be done by a registered process server, the sheriffs department, or a Constable. In most jurisdictions, service of process may also be accomplished by an individual over the age of majority, who is not involved in the case. Personally delivering the lawsuit to the defendant ensures he or she has been notified of the lawsuit, and has an opportunity to provide an answer to the complaint. A sworn, written statement of when, where, and how the documents were delivered must be filed with the court. In the event the defendant is not properly served, he or she can file a Motion to Dismiss based on insufficient service of process.

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    Reasons To File A Motion To Set Aside Judgement

    There are a few reasons why you may want to consider a motion to set aside judgement. This includes:

    • You never received a legal notice that you were the defendant in a civil case
    • Failure to attend court due to illness or other circumstances
    • Problems with your legal counsel and representation
    • Extrinsic fraud or mistakes affected the ruling
    • Misconduct by the person who initiated the lawsuit
    • The court had no jurisdiction to make the ruling

    If you are unsure if your situation qualifies for seeking such a motion, be sure to consult with an attorney from our law firm.

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