If you or a loved one is trying to vacate a judgment, consult with a consumer protection lawyer. They can help ensure you figure out your legal rights. Fitzgerald & Campbell has substantial experience representing debtors. We will fight for you. To get started, contact Fitzgerald & Campbell for a free consultation by calling (844) 431-3851 or contacting us online.
A motion to vacate (and set aside) judgment essentially asks the courtto erase or correct its prior decision (judgment). Under California law, when you vacate judgment, it will be officially wiped off your record. This court will only vacate a judgment when its decision was made with incorrect or missing information, or the judgment doesn't match the verdict. This article will outline how to vacate a judgment made against you.
What Are Common Reasons To Vacate A Judgment?
The following are instances that will give a court cause to vacate its judgment under California law:
You never received a legal notice that you were the defendant in a civil case.
You failed to attend court due to illness or other circumstances.
There were considerable issues with your legal representation.
Fraud or mistakes by the party that filed the case affected the ruling.
Mistake, inadvertence, surprise, or excusable neglect of the party who failed to defend himself in the case.
What If I Never Knew I Was Being Sued?
Sometimes a defendant does not know that they are being sued and therefore does not appear in court. When this occurs, the court enters a " default judgment, " which means the plaintiff automatically wins the case. If the court enters a default judgment against you, the plaintiff can collect it like any other judgment and garnish your wages or attach your bank accounts, among other things.
What Is The Process That The Plaintiff Must Follow To Notify Me Of A Lawsuit?
To begin a civil case, the "plaintiff" (suing party) files their "complaint" with the court. The complaint describes what the plaintiff wants and identifies the "defendant" (the party being sued). The plaintiff also has the court issue a "summons" that notifies the defendant of the suit.
The summons and complaint must be "served," which means hand-delivered by a process server to the defendant. If the plaintiff cannot serve the defendant or the defendant is avoiding service, the court may agree to serve by publishing a notice in the newspaper.
Once a defendant has been served with a summons and complaint, they typically have twenty days to file a response with the court. If the defendant fails to file with the court before your deadline, the plaintiff can ask the court for a default judgment.
If the plaintiff fails to follow proper service, as outlined above, a defendant can file a motion to vacate judgment to set the default judgment aside.
What Do I Need To Include In A Motion To Vacate Judgment?
California law provides that you must file your motion to vacate with the clerk of court and serve it upon the adverse party. Your motion must lay out the facts and the legal reasons that the judgment should be overturned.
Can I Also Include My Defenses To Plaintiff's Claims In My Motion To Vacate Judgment?
While you don't need to include your defenses to the plaintiff's claims in your motion to vacate the judgment, it could help if you do include them. The judge will be more likely to set aside the judgment with the knowledge that you have a good defense; otherwise, the court could be wasting time reopening a case that will inevitably be lost, and you will end up in the same position.
Some common defenses that you should explore, which would benefit from an attorney's help, could include:
Improper Service of the Summons and Complaint (outlined above)
Expired Statute of Limitations
Violation of the Fair Debt Collection Practices Act.
You have already made a payment on your account (either in part or in full)
The Credit Card Charges were fraudulent
Your debt was discharged in bankruptcy
When Do I Need To File My Motion To Vacate Judgment?
The motion must be filed after the decision is rendered and before the entry of judgment, and either:
1) Within 15 days of the date of mailing of the notice of entry of judgment by the clerk of the court; or
2) You receive service by another party of written notice of entry of judgment, or
3) Within 180 days after the entry of judgment, whichever is earliest.
Note that the power of the court to rule on a motion to vacate judgment generally expires 75 days after the notice of judgment is mailed or served upon you. Even if you file your motion in time, it is deemed denied if not determined within 75 days.
What Happens If The Court Grants My Motion To Vacate Judgment?
If the judge grants your motion to vacate, the case will begin again. You can then appear in court and assert whatever defense you have to the plaintiff's claims. It is important to note that if you don't have a defense against the plaintiff's claims, you could still lose your case and be responsible for the plaintiff's attorney's fees.
How Can A California Debt Resolution Attorney Help You?
If you have a judgment against you that you wish to vacate, a debt resolution attorney can be an invaluable asset. The attorneys at Fitzgerald & Campbell are highly experienced and have helped many individuals successfully navigate the ins and outs of monetary and debt judgments. For more information, get in touch with Fitzgerald & Campbell for a free consultation by calling (844) 431-3851 or contacting us online.