Did someone file a judgment against you? If they did, there is a chance you can get it dismissed or "vacated." Vacating a judgment is basically the equivalent of stamping a big fat red "VOID" on the judgment paperwork.
Filing a motion to dismiss a judgment is like filing an appeal on the outcome of a jury trial. If the outcome was not fair, and you have good reason why the court should overturn its prior ruling, you should file a motion. Don't be intimidated by the thought that you are challenging a court ruling, it happens all of the time.
As with many collection agencies, many people who file lawsuits to collect money from you in court didn't follow the law. You may be asking yourself why the judge didn't know about this improper deviation. As in most professions, judges tend to specialize in one type of case. For the same reason that you can't expect a heart surgeon to know the best psychiatric medications to prescribe to a patient with schizophrenia, 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. Before deciding on a case, most judges need to look up and study existing statutes and case rulings. In addition, if the person who sues says they followed the correct procedure and the defendant or his lawyer does not dispute it, it's a sure bet they were given the benefit of the doubt.
Another thing to look out for: even if the person suing you followed all the right court procedures, you can still win on technicalities. The two biggest reasons a judgment is "won" are: A) the defendant failed to respond to the court summons with the proper paperwork in the allowed period of time, and B) 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.
If you receive a judgment or a writ of restitution and you believe you had 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 you may have had good reasons for not responding or appearing, the court may decide to set a hearing on your motion to vacate the judgment.
First some terms:
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.
Vacate basically means dismiss.
The plaintiff is the person suing you.
The defendant is the person being sued (you).
The first thing you should be before preparing a motion to vacate is to look up your state's rules of civil procedure. 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. Here's a good link:
http://www.law.cornell.edu/topics/state_statutes.html
You must prepare a Motion and Declaration to Vacate Judgment and an Order to Show Cause.
A sample document is included at the end of this article which can be used as a template to write up your motion. 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 you 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:
http://www.findlaw.com/10fedgov/judicial/district_courts.html
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.
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."
Most 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 Anchorage, Alaska, and you now live in Miami, Florida, you will have to fly to Alaska to both file the paperwork and to attend the court trial.
Go to the courthouse with your typed document and tell the court clerk that you are filing a motion to vacate a judgment. There may 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 plaintiff in the original suit) will typically have 35 days to respond.
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).
Very often the original plaintiff in your lawsuit will come back to you and offer to vacate the judgment, especially if they blatantly flouted the laws in winning the case in the first place and have no proof, say that you were properly served, or that 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.
In the best of all possible scenarios, the original plaintiff will not show up for the hearing to dismiss and 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 worlds, they show up to the hearing and 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. See Suing your Creditors.
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.
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