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Vacating A Default Judgment

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This guide provides general information for Californians who are facing debt collection lawsuits in the Superior Courts of California. It does not apply to courts outside the state of California. It is not a substitute for obtaining legal advice in your individual case.

What is a judgment? A judgment is the court's written, final decision in the case. If the judgment is against you, it will state how much money you owe to the plaintiff.

What is a judgment creditor? A “judgment creditor” is a creditor or debt buyer that has obtained a judgment against a defendant.

What is a default judgment? When a defendant fails to file a written Answer with the court (“defaults”) the court will issue a judgment against the defendant. A judgment issued under those circumstances is commonly known as a “default judgment.” The court usually awards the plaintiff the amount demanded in the complaint, plus interest and court costs. The court usually awards attorneys' fees on a default judgment based of a schedule published by the court.

Can I re-open a default judgment? Yes. Under certain circumstances, it is possible to vacate (re-open) a default judgment. The court has a special procedure for determining whether to vacate a default judgment. The procedure is relatively straightforward, but often requires a noticed motion and a hearing before the judge.

What are the criteria for vacating a default judgment? There are two main reasons that a court will vacate a default judgment: (1) excusable default and (2) lack of personal jurisdiction. These reasons are explained below.

Excusable Default Excusable default is the most common reason for vacating a default judgment. It has two parts: (1) a reasonable excuse for not filing an Answer within the 30 day time; and (2) a meritorious defense (a good defense). There is a time limit for moving to vacate a judgment because of excusable default – 180 days from the entry of the Judgment. (If you were never served with a Notice of Entry of the Judgment, the time limit is extended to 2 years.)

Common examples of a reasonable excuse: The most common example of a reasonable excuse is that you did not receive the Summons. Other reasonable excuses are that at the time you received the Summons you were out of town, ill, incarcerated, or that you could not answer the Summons for some other good reason. You would also have a reasonable excuse if, in response to the Summons, you telephoned the attorneys for the plaintiff and they told you not to bother filing an Answer.

Sometimes people do not respond to the Summons because they do not understand what it is. This is not normally considered to be a reasonable excuse; however, some judges will accept it.

Common examples of a meritorious defense: A defense is a reason why you don't owe the money, not a reason why you can't pay. For example, you would like to use the defense of identity theft or statute of limitations. For a list of possible defenses, see Common Defenses to Debt Collection Lawsuits. You can also simply dispute the amount of the debt. Disputing the amount of the debt, combined with improper service, is a sufficient (and very common) reason for the court to grant an order vacating the default judgment.

Lack of Personal Jurisdiction (Improper Service) The court can also vacate a default judgment if you were not properly served with a Summons. There are advantages and disadvantages to trying to vacate a judgment on the grounds of improper service. The main advantage is that there is no time limit for seeking to vacate a judgment on the grounds of lack of jurisdiction. Also, if you seek to vacate a judgment because of improper service, you do not need to cite a meritorious defense (or any defense). The disadvantage of seeking to vacate a judgment on the grounds of improper service is that you have the burden of proving the bad service, which you must do at a hearing before the judge. Proving improper service can be difficult depending on the facts of your case.

How do I vacate a default judgment? First, find out which court issued the judgment. (In a debt collection case, you will most likely need to go to the Civil Division of the Superior Court in the county where you live.) Next, go to the court that issued the judgment and find the civil court clerk's office. There, tell the clerk that you want a copy of the entire court file for your case. The clerk may give you a pre-printed document request form to fill out. Once you have obtained a complete copy of the court file for your case, contact one of our attorneys to review your case without cost or obligation.

What happens at the court hearing? At the court hearing, you will most likely find yourself sitting in a courtroom with a number of other people who are in the same position as you. The court clerk will call out your name, and you should answer clearly. The attorney for the plaintiff may call out your name as well. The plaintiff's attorney might consent to vacating the judgment or ask whether you want to make a settlement agreement. No matter what the plaintiff's attorney says to you, it is important that you focus on making sure that the default judgment is vacated. If the plaintiff's attorney does not consent to vacating the judgment, you should ask to go before the judge. When you are before the judge, you must focus on the arguments you made in your Motion to Vacate. Simply keep repeating (1) your good reason for failing to file an Answer; and (2) your defense in the case. As long as you have a reasonable excuse and a meritorious defense, the judge should grant the Motion to Vacate and vacate the judgment against you. If you want to argue lack of jurisdiction because you were not served with a Summons, you must do it at this time.

What if I have a frozen bank account or wage garnishment? Once the default judgment is vacated, the plaintiff must release your bank account and cancel the wage garnishment. This is included in the court's order vacating the judgment.

If the judgment is vacated, does that mean the case is over? Probably not. In most cases, even though the judgment is vacated, you still have to defend the case. That means you have to file an Answer and attend at least one additional court date.