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Is This A Good Vacate Judgement Request?


Sarris
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I am trying to vacate a judgement against me that I had no idea was in play. Now that I am aware of it I can honestly say that I was never served and had not knowledge of this suit. (Running an add in the paper, without proof that I subscribe to that paper, is bullshit and should not be consider a notice for appearance or summons.)

At this point the judgement is just over a year old and I really don't know what else to do other than to try and vacate it. Past that I don't know what to do. So any insight on how best to word a VJ letter would be greatly appreciated.

Any advise on how to go about the process to get it infront of the judge would also be greatly appreaciated.

IN THE SUPERIOR COURT OF THE STATE OF (my State) IN AND FOR THE COUNTY OF (my County)

(OC's Name)

Plaintiff,

vs.

(My Name),

Defendant.

No.

(Judgment No. )

MOTION AND DECLARATION TO VACATE JUDGMENT

1. Relief requested. The defendant(s) move(s) the court for an order vacating the judgment entered in this action and staying enforcement of the writ of restitution until the motion can be heard.

2. Statement of facts and issues. This motion is based on the following grounds: I was not properly served any notice of court or legal action and that having not been properly served I was denied my right to respond to this matter.

Dated: ________________________Sign:______________________________

My Name and Address

DECLARATION

I, my name, declare as follows:

1. I am the defendant in this unlawful detainer action.

2. I request that the judgment entered in this action be vacated for the following reasons: A) The debt was disputed prior to collection. B) The debt was disputed after collection activity began. C) The Plaintiff, Company X, never responded to my request for validation of this debt, therefore never providing any proof that the debt. was mine. D) The collection agency representing the Plaintiff, company name, never responded to my request for validation of this debt, therefore never giving any proof that the debt was mine under the FDCPA. E) The amount of the debt exceeded the state's usury interest limits. F) I was not properly served. G) I was denied, because of reason (F), my legal right to respond.

I certify under penalty of perjury under the laws of the state of (my state) that the foregoing statement is true to the best of my knowledge and recollections.

Signed in ______________, ________________ on _______________.

Sign: __________________________________

My Name

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Hard to know. What state was the judgment entered?

You may be out of luck with the timing. In NYS, for exampl, you have but 1 year to attack a default.

Even if you have the time issue settled, you need to give the reason why you weren't served AND show a meritorious defense. Courts are loath to open a judgment just to see the plaintiff prevail easily. Lack of personal jurisdiction can be used, but you should have another to show the court as well.

But before you do anything, get a hold of the court clerk and order a copy of the Affidavit of Service and the affidavit of regularity signed by the lawyer. You will need these if service is your issue.

You mentioned something about advertising the summons as not being sufficient. There is provision in many state laws for service by publication. You need a court order for that, but it can be done. I did a divorce for a woman whose husband had been deported to Yugoslavia. How was I supposed to get him served in a commuinist bloc country? So, the judge let us publish in a weekly paper and send a copy by certified mail, RRR to all known addresses for the guy, bit hhere and in Yugoslavia. We did get a green card back with his signature on it!

So, if the plaintiff claims you were served by publication, you may need those papers , too, to see what the allegations are.

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You may be able to challange a citation by publication if you can prove that the search for you wasn't diligent, most courts are loathe to allow publication without a diligent search letter, so pull the case file and look for the diligent seach letter and see what tactics they used to look for you. For example, if they say that they searched for you at your home by certified mail or a sheriff and you lived there at the time of the search, or if they said that they checked phone books and that they could not locate you but your number was listed at the time, you may be able to use that to invalidate the citation. It's kind of a long shot, but I have seen it happen before.

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