HOW TO VACATE A DEFAULT
JUDGMENT
A default judgment means that the court has decided that you
owe money. This a result of the person suing you in small
claims court and you failed to appear at the hearing. You
cannot appeal this kind of judgment and have a new trial until
you “vacate the default judgment”, that is, until
you have the judgment removed or erased. To vacate a default
judgment, do the following:
1. Get the form called Notice of Motion
to Vacate Judgment from the small claims clerk.
2. Fill the form out and file it with the
small claims clerk with a filing fee. You must do this within
30 days of the date of mailing that written on the Notice
of Entry of Judgment you received from the court. You should
have a good reason for not having appeared in court when you
were supposed to.
3. If the reason you did not go to court
was because you were not served with a copy of the claim,
you have up to 180 days after you find out about the default
judgment against you to file the Notice of Motion to Vacate
Judgment form. Filing the Form. When you file the form, the
small claims clerk will set a date on which you and the person
suing you are to appear in court. The judge will decide whether
to vacate the judgment against you or not.
To help the judge decide in your favor
Bring whatever evidence you can to the hearing to show why
you were unable to come to court the first time. An example
of what to bring might be a letter from a doctor or a hospital
bill. If the judge agrees to vacate the judgment. The original
case will probably be heard right then. Be prepared to tell
your side of the story and present your evidence in an organized
and concise manner at that time. If you have witnesses to
help your case who could not be present.
You can ask the judge for a continuance
The judge may or may not grant the continuance. If the judge
decides not to vacate the judgment. You can only appeal the
judge’s denial of the Motion to Vacate Judgment. You
cannot appeal the judgment against you. You must file the
appeal within 10 days of the judge’s decision.
To file the appeal
Get a form called Notice of Filing Notice of Appeal from the
small claims clerk. Fill it out and file it with the small
claims clerk. A fee is required. If the judge decides not
to grant your appeal or vacate the judgment. You are responsible
for paying the judgment. If the judge does grant your appeal
and vacates the judgment. The original case will usually be
heard right then. Be prepared to present your case, including
any evidence you have, at the time of the hearing. Remember,
your case will only be heard if the judge grants your appeal.
Additionally...
Check
your state laws. We used California as an example above
but you need to read your own state law (where the judgment
was filed) to know what the rules are.
Never assume that the judgment is valid
just because. If a creditor or collection agency sued you,
you can probably find many technicalities to void the judgment
such as, you were improperly served, the collection agency
or creditor never validated the debt as allowed to you by
law. Collection agencies often violate the FDCPA so pay close
attention to how things were handled.
While it may seem overwhelming to attempt
to vacate or void the judgment, it is well worth your efforts.
Collection agencies win most judgments simply because the
debtor was too afraid to show up and defend it.
Some portions: California Court> For
more go to: California
Court
|
