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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.

motion to vacate

Getting Past Default Judgments and Defending Yourself from Debt

What is a default judgment and what should you do if a debt collector gets one against you? This video begins to answer those questions.

When a debt collector brings a suit, and a process server hands it to you or a “responsible” member of your household, you have been served and must take actions to defend yourself in court. If you don’t respond appropriately (by answer or motion to dismiss, for example – NOT by sending a request for verification!!), the debt collector will probably get a default judgment.

Most debt cases – perhaps as many as 80% – end in default judgments. Many people who ignore the suit then think the debt case had just, somehow, “gone away” are surprised to learn that the debt collector got a judgment and is now looking to garnish wages. And the way you find that out is not at all pleasant, because it generally happens after the debt collector has found where you work or bank and seized assets or started garnishing your wages. This massively disrupts most debtors’ budgets and puts them way behind.

It does happen, all too often, that defendants are NOT served, but the process server says they were. Then, the way these people find out they’ve been sued is that they get a notice of garnishment (somebody taking their bank account or part of their wages).

They Got a Default Judgment, Now What?

Regardless of how it came about, the first step in stopping the garnishment and fighting the debt lawsuit is to get the judgment against you vacated. And in order to do this, you must file a “Motion to Vacate.”

This video talks about that process and how you would go about vacating the judgment against you, stopping the garnishment (or not, if you’ve learned of the judgment in some other way).

This is a companion to the video, “Procedure for Moving to Vacate Default Judgments.” This video explains why you should try to vacate (remove) a default judgment against you and generally how to go about doing it. The second video goes into a little more detail on that and tells you specifically what documents you will  need to file and what they should contain. If you have defaulted on a debt suit and want to try to reopen it (to prevent collection), check out our product: Motion to Vacate Pack.

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