Finally going to file a motion to vacate judgment...

[ImaBird]

This is the motion I'm going to file.

Please tell me if I need to add or subtract anything...

IN THE SUPERIOR COURT OF THE STATE OF OHIO

IN AND FOR THE COUNTY OF _____________

PALISADES |

Plaintiff |

| Case No. 123456789

Vs. |

| MOTION AND DECLARATION,

Imabird's maiden name | TO VACATE JUDGMENT

AKA Imabird's married name |

Defendant |

NOW COMES the Defendant, Pro Se, and prays this Honorable Court to Deny the Plaintiff’s Motion to Dismiss and Motion for Sanction for the following reasons:

1. Relief requested. The defendant moves 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: Defendant wasn’t properly served. Defendant rests upon her constitutional right of due process.

Dated: __________

______________________________

Defendant(s) (Signature)

Defendant(s) Name (Print)

Address

Telephone Number

DECLARATION

I, Imabird, 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:

The collection agency could not verify the debt with

credit reporting agencies, therefore never giving any

proof that the debt is mine under the FDCPA.

I certify under penalty of perjury under the laws of the state of Ohio that the foregoing statement is true.

Signed in ______________, Ohio on ___________.

__________________________________

Imabird

[trueq]

"A court has an inherent power to vacate a void judgment because such an order simply recognizes the fact that the judgment was always a nullity." Service of process must be reasonably calculated to notify interested parties of the pendency of an action and afford them an opportunity to respond. A default judgment rendered without proper service is void.

Then invoke the "void judgment statue" in your state.

[trueq]

"I never recieved process of service for the underlying default judgment."

Or leave #2 in there and add this one.

Make it clear to the court in your affidavit.

Edit: What I meant to say is item #2 in your affidavit will not get the judgment vacated because judge does not care what CA's do.

[ImaBird]

"A court has an inherent power to vacate a void judgment because such an order simply recognizes the fact that the judgment was always a nullity." Service of process must be reasonably calculated to notify interested parties of the pendency of an action and afford them an opportunity to respond. A default judgment rendered without proper service is void.

Then invoke the "void judgment statue" in your state.

The thing about Ohio is that ANYONE can sign a service by certified mail, and it is considered served.

That's why I demand due process.

So, should I still add your suggestion?

[trueq]

A default judgment does not relieve the party proving the debt (or the party who got the defult judgment in this case) from proving the debt through a competent, firsthand, fact based witness. No "facts" before the court rise to the level of evidence without the witness with the firsthand knowledge of the evidence, which makes the judgment void. A witness is neccssary, even for a default judgment!

That's why if you petition to vacate the judgment as "void", you do not have to only rely on defective service as your only argument on the vacation of the defective judgment.

It should be fairly easy to argue and prove no witness showed up at the default judgment hearing.

I think you do need to attack the service, based on your first post above and the lack of a witness testifying. Do it in the affidavit. "I was never in receipt of any document notifying me of judgment action." "I am not in receipt of any firsthand, competent, witness testimony verifying and authenticating any evidence on record for this judgment."

Clean it up a little, but keep it to "you have not received documents ", that is a fact. The burden is then on the other side to produce those documents against your sworn statement!

Of course, my free speech, based on your narrow disclosure of the case above, is not legal advice.

[cjtx]

You really need to look into your state's rules of civil procedure. Each state has different deadlines for vacating a judgment, depending on the reasons to vacate it. The limitations are strictly enforced and the procedure to vacate it is different in each state.

For example, in Texas, the Court that renders a judgment only has 30 days to make any changes to it. After that, it loses authority over the case. Then you have 6 months for a restricted appeal, in which you can point out errors in the judgment without introducing any new evidence. After that, you may sue for something else and collaterally attack the judgment, but again, without introducing any additional evidence. The only way to attack a judgment in Texas based on lack of/improper service is through Bill of Review. It's another lawsuit, with the same parties (reversed), where you allege there was extrinsic fraud. You cannot retry your case, even if there were bogus affidavits, evidence, etc. The only thing you can attack is service and other procedural issues independent of the merits of your case. The rationale is that once a judgment is final, you can't just go back and try to get a second bite at the apple. Once a Bill of Review is granted, the previous judgment is vacated.

[trueq]

the law of voids in many states are powerful!

For instance, there is no time limit in Wisconsin as to when a void judgment can be attacked. So no timelines for attack apply.

Also, if you are attesting its a void judgment in your affidavit because of lack of evidence, lack of competent fact witness, etc. it does essentially open it back up for a fact review because the other side needs to rebut your affidavit as evidence.

If the other side does not rebut the affidavit on void judgment attack, judge has no other option but to vacate.

If the other side cannot rebut because review of the evidence proves your assertion about the void judgment correct, judge has no choice but to vacate.

So in this circumstance, in many states, you really do get a another bite at the apple, if you do it right.

From a philisophical standpoint, you are correct about fact based review on appeals, but this is a small spot of the legal universe where fact based review can be forced to occur.

Just my 2 cents.