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Voidable Judgments – the Other Kind of Motion to Vacate

Voidable Judgments – the Other Kind of Motion to Vacate

For a free copy of this article in PDF form, click here: the other kind of motion to vacate

Most of the time when people talk about motions to vacate they’re talking about motions to vacate a default that occurred as a result of failure to respond to a properly served lawsuit. There is another kind of motion to vacate, though, for people where the court did not have proper jurisdiction. If that’s your situation, this is a better way.

A Quick Review

Once a lawsuit is properly served on a defendant, the court has “jurisdiction” (the power to address the claims made in the suit) at least provisionally. If a defendant fails to respond appropriately to such a suit, the plaintiff will probably get a default order and judgment. That is what happens in a large majority of debt cases.

An “appropriate” response that will prevent a default judgment is either:

  • An Answer, or
  • a motion to dismiss the suit.

It is also possible to file a motion “for more definite statement” in some states, as well. The point is, though, that every allegation in the petition must either be moved against or answered. If that happens, a default judgment should never be issued.

If you fail to answer and the court awards a default judgment, you can ask the court to give you another chance by asking it to “vacate” the default and allow you to defend the case. I discuss what this is, what the time limits are, and how to do it in several articles, see, e.g.,  Overcoming Default Judgments.

Voidable Judgments

But what if the court does NOT have or get proper jurisdiction over you?

This can happen in two common ways: the debt collector does not manage to serve you properly; or the debt collector sues you in a court that doesn’t have power over you (because you live somewhere else). Other ways are possible, but these are by far the most common.

If you find out that you are being sued in a court that lacks jurisdiction before judgment, you can move to dismiss the case on that basis, but that can defeat the whole purpose of the rule – since in order to do so you would have to appear (“specially”) in the court to do it, and if you’re far away, that’s impractical. Another way to handle the situation is to let the court rule and then attack the judgment in the correct court. That also has significant drawbacks, so if you know about the situation before judgment, it can present a tough question.

But most people do not learn about suits where the courts lack jurisdiction before judgment.  They find out about them later. What do you do if that happens?

No Authority, No Judgment

The good news is that there is NO time limit on a voidable judgment. The court never had authority to enter the judgment, and “all” you have to do is establish that fact. You can do that at any time, and it completely undoes the judgment. It is called “void ab initio,” meaning “from the beginning” as if it never existed.

Burden of Proof

The bad news is that you can have a high burden of proving that the court did not have authority over you. Most courts require you to present “clear and convincing” evidence of the facts that you were not subject to the court’s jurisdiction. In the case of residency – you were living in California but sued in Florida, that isn’t necessarily so hard.

In the case of sewer service – where you weren’t served, but the process server swore you were, it can be much more of a challenge. Still, almost everybody I’ve known who tried it succeeded. That’s because the process servers normally describe the person to whom they theoretically gave the petition, and they usually won’t know your age or body shape, and often guess incorrectly your gender and race. If their affidavit says they served a woman 5’2” eyes of blue and you’re obviously not that, you’re good. Other things obviously aren’t as easy to prove.

What you Have to Prove

You have to prove by good evidence that the court lacked jurisdiction over you.

What you Do Not Have to Prove

You won’t have to prove you made any mistake (you didn’t) or that the substance of the judgment (i.e., you owe $2,000) was wrong in any way. You do not need to allege or prove any “defense” to the suit, in other words. Attack the jurisdiction, and the case goes away.

What you Should Not Have to Prove

You shouldn’t have to prove you didn’t receive notice of a sewer service filing. Suppose, for example, you found it in the trash in a nearby dumpster. Most courts require proper service and not “notice” of the suit. But I’m afraid you can’t count on the courts to apply that rule consistently. You will not want to offer proof or any indication that you heard about the case in any way prior to judgment. If you became alerted to the fact that a process server was around and do some research in the court files, you will want to disguise the fact and cover your trail.

Special State Rules

The rules for this sort of motion to vacate are NOT the easily found rules in the rules of civil procedure. You must research your state’s rules for voidable judgments and follow whatever rules you find there.

Products Related to this Article

We do not have a product directly related to this article if you are moving to void a judgment. You may find our Motion to Vacate Pack helpful in showing you the form of motions and proof, but it does not contemplate the rules you would need to follow. I emphasize, again, that in filing a motion to void a judgment entered without jurisdiction, you would not want or need to include a “proposed Answer,” and you would not need to allege a defense (although claiming a defense wouldn’t hurt and might help).

You would probably find our memberships useful, particularly if the situation with the debt collector that brought you here is not the only one you’re facing.

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Overcoming Default Judgments

As anybody familiar with my work knows, most debt cases end in either default or “give-up settlements,” where the person sued agrees to everything (or almost everything) the debt collector wants. It is one of the strangest things in all of law: most debt cases that are filed couldn’t be won if they were opposed; but very few people fight. So 90 percent of the unwinnable cases filed in debt are in fact won with the greatest of ease.

Strange.

So what is a default? It is first a court order, and often a judgment immediately or after a short delay, giving the plaintiff – the person who brought the suit – whatever they wanted. It happens when the defendant does not show up or defend himself or herself in court. Note that “default” is not the correct way to describe what happens if you DO show up and lose. The result of not showing up is usually a complete, automatic victory for the plaintiff, and that’s what we’re talking about.

The courts do not “favor” such an outcome. That’s because a case that is won because it wasn’t opposed is not a victory “on the merits” – there’s no real indication it’s fair, and as everybody knows in the debt context, it often is NOT fair. But what can the courts do?

If you have had a default against you, you may have a chance to get that changed. If you take steps, and if they think you weren’t playing games in the first place, they will often reverse the judgment. Then you go back to defending the lawsuit. If you get that far, you will probably win the suit – 90% of winning the case will be in getting the judgment vacated (removed). That will stop collection and start the case over – but if you’re willing to fight, and manage to get the default judgment vacated, you’ll find the rest of it pretty easy.

We have products that can help you do all that.

Procedure for Moving to Vacate

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Motion to Vacate or Set Aside

If you missed the time for filing your Answer or showing up in court – even by just a few minutes, there is probably a default order or judgment against you. You will need to get that order vacated or “set aside,” the legalese for “removed.” You need the court’s initial judgment to go away, in other words, so you can start over and defend yourself from the debt collectors. You ask the court to do that by filing a Motion to Vacate. There are two parts to every motion to vacate – the part that explains and seeks to excuse your failure to answer, and the part that shows the court that you have some sort of defense to the suit.

There are two conflicting policies behind vacating default judgments: the policy in favor of hearing every case “on the merits” (rather than letting the case be decided by a “technicality”) and the policy in favor of “finality,” which is just a way of saying that when a court has decided something it likes for things to end. When you’re a “little guy,” the courts are more interested in finality than they are for bigger economic players.

At the same time, the debt collector will fight hard to keep its default judgment – that gives it a chance to raid your bank accounts or wages at practically zero cost rather than allowing you to defend. Thus while you have a very good chance to get the default judgment removed, the motion is a little tricky, and time is of the essence, meaning that any delay in filing the motion could cause you to lose it.

The Motion to Vacate or Set Aside Default Judgment Packet consists of 9 Documents:

  • Two Sample Motions
  • An “annotated” Motion – to be used as a model for cutting and pasting
  • A Sample Affidavit
  • Sample Memorandum in Support
  • Sample Proposed Answer and Counterclaim
  • Instructions
  • Case law notes
  • Report on Default Judgments and Motions to Vacate.

Although this is not “cut and paste” you will find this document, along with the directions, just what you need to file your Motion to Vacate and to get started defending yourself so you can keep the debt collectors from garnishing your wages or raiding your bank account.