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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 judges
denial of the Motion to Vacate Judgment. You cannot appeal the judgment
against you. You must file the appeal within 10 days of the judges
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
Removing
a Judgment FAQ:
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