Has a creditor or collection agency filed a judgment against you or someone you know? If they have, then there’s a possibility that you can get it dropped or "vacated." In essence vacating a judgment is the equivalent of writing a big red "VOID" on the judgment paperwork. When you file a motion to vacate a judgment you are basically filing an appeal to the court on the case. Keep in mind that most of you are not lawyers and may want to consult with one. I am not a lawyer either and don’t want to represent myself as one. This is simply useful knowledge for you to use as you see fit.
SPECIAL NOTE (added 12/27): Since someone pointed out that this post (despite the disclaimer) sounded like legal advise to them, I want to make COMPLETELY CLEAR: I am NOT an attorney. If you are not an attorney, I do not advise representing yourself in a legal situation (Especially one with substantial consequences should you fail.) "The man who represents himself has a fool for a client." I don't know who said that but I agree. THAT being said, there are some situations that you can handle yourself. Please, use common sense and know your limitations.
If the outcome was not fair, and you have good reason why the court should overturn its prior ruling, you should file a motion. Filing a motion to dismiss a judgment is like filing an appeal on the outcome of a jury trial. Don't be scared by the notion that you are challenging a court ruling, it’s something that happens all the time. .
It is not uncommon that, just as with many collection agencies, many people who file lawsuits to collect money from you in court didn't adhere to the law. Now, you might ask yourself why the judge didn't know about this lack of adherence to the law but what many people don’t know is that as in most professions, judges tend to specialize in one type of case. For the same reason you wouldn’t expect a break repair specialist to know the ins and outs of your cars electrical system, a judge doing small claims or injury lawsuits may not be intimately familiar with consumer law. Sure they know the basics, but one person can't know everything. Often, before deciding on a case, a judge needs to look up and study existing statutes and case rulings. Additionally, if the person who sues says they followed the correct procedure and the defendant’s lawyer or the defendant doesn’t dispute it, it's a sure bet they were given the benefit of the doubt.
The two most frequent reasons a judgment is "won" are: A) failing to respond with proper paper work - often the defendant will simply fail to respond to the court summons with the proper paperwork in the allowed period of time, and the second reason is similar B) failing to show up - the defendant failed to appear for their court date. This is calling winning by default. If you missed your court date, you may still not be out of luck. Something else to be aware of: even if the person suing you followed all the right steps and court procedures, you can still win on technicalities.
If you received a judgment, writ of restitution, or writ of execution (See terms below) and they believe to have a good reason for not responding to the eviction summons or appearing at the "show cause" hearing, there still may be grounds for asking the court to vacate the judgment. If the court agrees that they may have had good reasons for not responding or appearing, the court may decide to set a hearing on a motion to vacate the judgment.
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. You don't need to worry about this document if you are not being sued by your landlord.
1. Vacate basically means dismiss.
2. The plaintiff is the person suing you.
3. The defendant is the person being sued (you).
Writ of Execution: If a court has awarded a civil judgment, this does not automatically result in the collection of the money you owe. If you do not respond, then the creditor / collector may file an “Affidavit in Support of an Order to Show Cause.” They are required to personally serve you with it. If you do not appear in court, the creditor / collector can then ask the court to issue a “Writ of Execution.” This is a legal document authorizing garnishment of wages (of course – this pertains to states that allow garnishment of wages.) You may have the costs of collection and court fees added to your judgment.
Preparation - The Motion to Vacate
The first thing you should do before preparing a motion to vacate is to look up state's rules of civil procedure. (See Civil procedure - State statutes below for a link to your state)
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 don't follow the procedures, you can get your motion thrown out on a technicality. You must prepare a Motion and Declaration to Vacate Judgment and an Order to Show Cause. Motion and Declaration to Vacate Judgment a sample document can be found here:
This document tells the court why the judgment against you should be vacated. First, you need to identify the case by name and court reference number and all the persons involved in the judgment. Next, explain your reasons for bringing the motion. State your "procedural defenses," that is, the good reason(s) why they did not respond to the summons and complaint on time or appear at a "show cause" hearing. For example:
I was not served with a summons and complaint - you need to check your state laws here. Some states say that a non-certified letter delivered by US Postal service is all that is required to properly serve a complaint. Most states, however, require that you be served in person or at least get your summons sent certified, return requested mail. Here is a good link to double check you state and county procedures:
- I responded to the summons and complaint in time, but a judgment was issued anyway without a hearing.
- I was not able to answer the summons and complaint or appear at the show cause hearing because…
In the same space, also tell the court about your defense to the judgment (why the case would have been dismissed had you shown up in the first place). For example:
- The collection agency never responded to my request for validation, therefore never providing proof that the debt was mine under the FDCPA (Fair Debt Collection Practices Act).
- The amount of the debt exceeded the state's usury interest limits
Please note that the court will only respond to violations of existing laws. They won't accept reasons like: "My insurance company was supposed to pay this debt and never did, therefore I shouldn't have to pay this medical bill."
Execution - Step 1 File the Paperwork
More than 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 Austin, Texas, and you now live in Denver, Colorado, you will have to get to Austin to both file the paperwork and to attend the court trial.Get to the courthouse with your completed document (typed) and tell the court clerk that you are filing a motion to vacate a judgment. It is likely that there will 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 plantiff in the original suit) will typically have 35 days to respond.
Execution - Step 2 Notify the Original Plaintiff
In some cases, once the paperwork is filed the court will notify the plaintiff and/or plaintiff's attorney. Be sure to ask if the court will serve notice or if you need to, as serving the notice of summons is crucial to winning your case. If it is your responsibility to serve notice, you can hire a third-party professional service company for a nominal fee (typically around $35). Settlement offers - What If They Offer to Settle Out of Court?It is common for the original plaintiff in your case to offer to vacate the judgment, especially if they didn’t follow the laws in the first place and have no proof or they violated the FDCPA, etc.If they offer to settle out of court, you should demand that they themselves file paperwork to dismiss the lawsuit. Also demand that they notify any collection agencies they may have hired to collect money and also notify the credit bureaus of the "mistake." It is also crucial before accepting any settlement offer (in writing, naturally) that they send you copies of any paperwork received from the courts about the judgment vacation or dismissal.Outcomes - What Happens at Court?If the original plaintiff in your case to dismiss never shows up this is the best of all possible scenarios as you will win by default. If this happens, you shouldn't have to present anything to the court and should receive your dismissal automatically, especially if the original plaintiff never responded in writing to the summons.In the second best of all possible outcomes, they do show up to the hearing but are unable to disprove your reason for requesting the dismissal:
- They are unable to show proper documentation that you were properly served.
- They are unable to show that the debt was legal in the first place (unable to show what the correct debt amount should be, if a contract existed in the first place, etc.)
This means, of course, that you should have good documentation on the case and have it available to present in court.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 that's 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 defendant do this, it only takes a few minutes and a few stamps to insure that it gets done promptly by doing it yourself. Here is another resource with case law concerning vacation of judgments. Be careful citing them, though and make sure they are applicable to your court venue (which is most likely a state court). For instance, citing a case in Texas is not going to help your case in Illinois.
Civil procedure - State statutes
· Alabama (see Title 6)· Alaska- Title 9· Arizona- Title 12· Arkansas (see Title 16, Subtitle 5)· California· Colorado (searchable index)· Connecticut- Title 52 Chapter 896· Delaware- Title 10, Chapter 95· District of Columbia (see Title 13-17)· Florida (see Title VI)· Georgia (see Title 9, Chapter 10) (searchable index)· Idaho- Title 5· Illinois- Chapter 735· Indiana- Title 34· Iowa (see Subtitle 3)· Kansas (see Chapter 60 and 61)· Kentucky· Louisiana (searchable index)· Maine- Title 14· Maryland (searchable index)· Massachusetts (see Part III, Title II, Chapters 223-236)·Michigan (searchable index)· Minnesota- Chapters 540-552· Mississippi (see Title 11)· Missouri- Title XXXV· Montana- Title 25· Nebraska- Chapter 25 and Chapter 26· Nevada (see Titles 3-6)· New Hampshire- Title 53· New Jersey (see Chapter 2A)· New York (see Civil Practice Law & Rules) | Alternate Site (see Chapter 8)· North Carolina (see Chapters 1 and 1A)· North Dakota- Title 28 (PDF)· Oklahoma (see Title 12) (searchable index)· Oregon (see Chapters 12-36)· Pennsylvania· Rhode Island- Title 9· South Carolina- Title 15· South Dakota-Title 15· Tennessee (see Titles 19 and 20)· Texas· Utah- Title 78· Vermont- Title 12· Virginia - Title 8.01)· Washington- Title 4· West Virginia (see Chapters 55-58)· Wisconsin (see Chapters 801-847)· Wyoming- Title 1
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