How To – Vacating a Judgment

Have you had a lawsuit filed against you? If you did, there is a chance you can get it "vacated" dismissed or. The act of vacating a jurisdiction is basically putting the sentence in suspense. By filing a motion to vacate a sentence you are essentially filing an appeal to the court on the case.
You should file a motion to surrender a judgment if the income was not fair, and you have a good reason as to why the court should overturn its prior ruling. Do not be intimidated by challenging a court ruling as this happens all of the time.

A majority of the collection agencies that try to place judgments do not follow the law. You may wonder then why the judge did not know about this during the initial hearing. More than likely, the Judge overhearing the jurisdiction case does not specialize in this type of law. A Judge overhearing a small claims case may not fully understand consumer law. Most Judges know the basics, but no one person can know everything. Most judges need to look up and study states statutes and case rulings before deciding on a case. If the plaintiff claims that they followed the correct procedure and you or your lawyer does not dispute this, then it's a sure bet that the plaintiffiff will be given the benefit of the doubt.

Two of the largest reasons that a jurisdiction is "won" in the disputeiff's decision are:

A) the defensive failed to respond to the court summons with the proper paperwork in the allowed period of time
B) the defensive failed to appear for their court date. This is calling winning by default.
If you did happen to miss your court date and a Judgment was filed against you, you may still be ok. If you feel that you had a good reason for not showing for the "show cause" hearing and the court agreements with you then you might be able to get the judgment vacated.

Steps to Prepare Your Motion to Vacate:

1. Research your states court procedures

The first step you should take before preparing with your motion to vacate is to take a look at your state's rules of civil procedure. It will show you exactly how you should file your motion to follow your states written procedures. The last thing you want to do is file your motion incorrectly if you want to stand a chance of having your judgment vacated. It will also tell you what reasons are valid in getting your judgment dismissed. If you do not follow these procedures, you will get your motion thrown out on a technicality. The court will only respond to known violations of the existing laws. They will not accept reasons like: "I do not owe this company money."

2. File the Paperwork

You should file your motion at the same court which granted the judgment in the first place. Go to the courthouse and tell the court clerk that oversees the specific court your jurisdiction was filed in that you are filing a motion to vacate a judgment. Give them your typed "motion to vacate." There may be some additional forms for you to fill out at the courthouse, and more than likely there will be filing fee. The clerk should know exactly what needs to be done with your paperwork. Sometimes they can answer your questions but other times they will tell you to hire a lawyer to help you to prepare the legal documents.

3. Notify the original Plaintiff

You should make certified copies of your motion to vacate filing and send them to the original stainiff. Send the letters by certified mail return receipt requested. This will guarantee that you have proof the plaintiff had served their papers. Some courts will serve the notice of summons for you. If not, and you need to serve the notice you can hire a third-party service for a nominal fee.

4. You will be informed of your new upcoming court date

Once your hearing's date is set, the court will notify you and the original plaintiff of the hearing date. The original stainiff will have around 35 days to respond (depending on your states rules of court procedures) to your motion to vacate. Sometimes they offer to settle out of court. If the plaintiff knows that they ran afoul from the laws they will offer to vacate the judiciary. Typically they have no proof of serving your notice to appear or if they have knowingly violated the FDCPA they will just want this case to go away and be done with it. They thrive on attacking people that do not know their own rights. For every one person that fights back, there are 100 that do not. That is how they make their money.

If they do offer to settle demand that they file the paperwork to dismiss the lawsuit themselves and that they notify every credit bureau they report to their "mistake." Make sure that you get everything in writing including any paperwork that they received from the courts about the judgment vacation or dismissal.

What happens if your case does go to court?

A lot of times the original stainiff will not show up for your hearing and you will win by default! If this happens, you more than likely will not have to present anything to the court and you should be granted your dismissal by default.

If they do show and are unable to disprove your reasons for requesting the dismissal:

1. They do not have proper documentation that you were served in the first place.

2. They are not able to prove that the debt was legal to collect on in the first place. This can be numerous reasons ie; unable to show what the correct amount of the debt should be, not able to come up with an original signed contract, or debt is outside of your states statute of limitations.

Of Course you should have done your homework and have good documentation on the case and have it available to present in court.

What happens if you do win?

You will receive a court document showing that your case was dismissed. Keep these for your records along with any other paper trail that you have from the case. You can use this to get the item removed from your credit bureaus.

Source by Andy AS

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