Motion to Vacate Judgement question

[luperu123]

Hello

I have been trying to file a motion to vacate for about a week now. Each time I have been frustrated beyond explanantion, the first time I tried to file a motion to vacate I was told by the "CLERK" that this was the wrong form, that I needed to do it in a pleading format, so then I read your whole website before using the format you give. Now they not only tell that it the wrong name for the Plaintiff but I need to get an attorney because its a civil matter

First of all its not the wrong name, I know the name cause I even spelled it out Why do I need an attorney for this I thought we could just file the motion pay the fee and wait to be heard

why is everyone giving me a hard time about this

PLEASE PLEASE ADVISE I don't know what else to do

thanks

[Leadhead]

First of all, you have an absolute right to represent yourself in any court, criminal or civil. If the clerk is telling you otherwise, ask to speak to her boss or a judge.

Try doing a Yahoo search on motion to vacate judgment. You should be able to find a template.

I found a sample at:

http://www.uslegalforms.com/samples/MS/MS-62429.pdf

Just fill in the pertinent info and file it with the clerk.

[Recovering Attorney]

You are bringing a motion in a civil court, and every state court has its own practice. Usually, you draw two forms: A Notice of Motion, which says when, where, who and for what, and an accompanying affidavit of merit.

Civil motions are made on notice to the other side, which means who have to serve a copy of your notice and affidavit on the plaintiff's attorneys so many days before hand. 30 days should be enough ( ie, make your return date ( the date it gets heard) for 12/10 or 12/15. Ther clerk should tell you if there is one judge handling the motions for December or if there is a particular judge handling motions at that time, so you can ask to be on his calendar. You make the motion in the court in which the judgment is docketed.

I don't know California law, but in NYS you must show a reasonable excuse why you didn't answer the complaint in teh first place ( bad service, sick, etc) AND a plausible defense to teh action. The fact that you missed a court date is not enough. If you want to argue there was insufficient service, go pull the file and see what the affidavit of service says, and on what grounds the plainitff relied on getting the default. Get copies you can attach to your affidavit. Attach documentary proof that refutes it.

Despite what it says here, courts are loathe to vacate judgements. For some that are more than a year old, it may be legally impossible. So, talking to a lawyer to see what your chances are, as well as determining a strategy to pursue to settle your matter, is sound advice. Because even if you vacate teh judgement, the lawsuit doesn't go away, you still have to defend it.