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.
What Are Acceptable Excuses For Default?
Excusable default is the most common reason for vacating a judgment. It has two parts: (1) a reasonable excuse for missing the original court date; and (2) a meritorious (good) defense. The time limit for moving to vacate a judgment because of excusable default is one year from the date one was served with a copy of the judgment. If never served, the clock has not started.
Common examples of a reasonable excuse: The most common example of a reasonable excuse is that one did not receive a summons regarding the court date. Other reasonable excuses are that one was out of town, ill, incarcerated, unable to take time off from work, or could not answer the summons for some other good reason. Another reasonable excuse is if in response to the summons one telephoned the attorneys for the plaintiff and they told one not to go to court (recording of this call required).
Common examples of a meritorious defense: A defense is a reason why one does not owe the money, not a reason why it cannot be paid. For example, if one would like to use the defense of identity theft, one would write: "I dispute the amount of the debt." and is a very common reason for the court to grant an order to show cause.
Lack of Personal Jurisdiction (improper service)
The court can also vacate a default judgment if one were not properly served with a summons. If one seeks to vacate a judgment because of improper service, it is not required that one cite any defense (yet). The disadvantage of seeking to vacate a judgment on the grounds of improper service is that one has the burden of proving the bad service, which must be done at a special hearing called a "traverse hearing." Proving improper service can be difficult depending on the facts of the case.
How to Vacate a Default Judgment?
First, find out which court issued the judgment. Call the clerk and tell them of the need to file an Order to Show Cause form. The clerk will send a form to print and fill out.
What Should Be Written on The Order to Show Cause Form?
On the Order to Show Cause form, explain why the court should vacate the judgment. Establish either excusable default, lack of jurisdiction or both. Always include on the form the reason why one did not appear in court and a meritorious defense.
What Happens After Filling Out The Order to Show Cause?
After one fills out the Order to Show Cause form, it goes to a judge for signature. If the judge signs the Order to Show Cause, it will be served on the opposing attorney. The court will instruct one how to serve the papers and give a "return date" to come back to court. If the judge does not sign the Order to Show Cause, then the judgment stays in place.
What Happens at The Return Date?
At the return date, one will most likely find themselves sitting in a courtroom with a number of other people. No matter what the plaintiff's attorney says, it is important that one focuses on making sure that the default judgment is vacated. If the plaintiff's attorney does not consent to vacating the judgment, ask to go before the judge. When before the judge, focus on the arguments made on the Order to Show Cause form. Simply keep repeating the reason for failing to appear in court and entering a defense in the case. As long as there is a reasonable excuse and a meritorious defense, the judge should grant the order to show cause and vacate the judgment. If one wants to argue lack of jurisdiction because one was not served with a summons, ask the judge for a traverse hearing.
What If a Bank Account is Frozen For Wage Garnishment?
Once the default judgment is vacated, the plaintiff must release their checking/savings 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, one still has to defend the case. That means one has to file an answer and attend at least one additional court date.
Cases on Void Judgments
"Whether a correction deed may convey two properties when an unambiguous deed mistakenly conveyed only one, correction deed found void, court renders judgment and orders rescission of the mistaken deed." Myrad Properties, Inc. v. Lasalle Bank, N.A. (Tex. 2009)(Green) The Court reverses the court of appeals' judgment and renders judgment. Justice Green delivered the opinion of the Court.
Phyllis C. Hudson v. SC Dept. of Highways - judgment finding a void judgment itself found void - Rule 54(c) does not result in a void judgment unless the judgment by default was different in kind from or exceeded in amount than that prayed for in the demand for judgment. Case Citation
Section 2-1401, similar to Rule 60 of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 60), is replacing traditional collateral proceedings as the proper vehicle for attacking void judgments. See Malone v. Cosentino, 99 Ill. 2d 29, 33 (1983) Final judgments can only be attacked on direct appeal, or in one of the traditional collateral proceedings now defined by statute. In light of these concerns, I believe the better course of action is simply to recognize that a motion for relief from a void judgment may be brought under Code of Civil Procedure Title 2 ยง 1401. This clarifies the basis of jurisdiction and provides the procedural mechanism for exercising the principle of law with which every member of this court agrees, i.e., that a motion attacking a void judgment may be brought at any time.
"A void judgment is to be distinguished from an erroneous one, in that the latter is subject only to direct attack. A void judgment is one which, from its inception, was a complete nullity and without legal effect." Lubben v. Selective Service System, 453 F.2d 645, 649 (1st Cir. 1972)
"A judgment rendered by a court without personal jurisdiction over the defendant is void. It is a nullity. [A judgment shown to be void for lack of personal service on the defendant is a nullity.]" Sramek v. Sramek, 17 Kan. App. 2d 573, 576-77, 840 P.2d 553 (1992), rev. denied 252 Kan. 1093 (1993).
"Where there are no depositions, admissions, or affidavits the court has no facts to rely on for a summary determination." Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647.
"A court cannot confer jurisdiction where none existed and cannot make a void proceeding valid. It is clear and well established law that a void order can be challenged in any court," Old Wayne Mut. L. Assoc. v. Mcdonough, 204 U. S. 8, 27 S. Ct. 236 (1907).
"The law is well-settled that a void order or judgment is void even before reversal," Valley v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S. Ct. 116 (1920).
"Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities; they are not voidable, but simply void, and this even prior to reversal." Williamson v. Berry, 8 How. 945, 540 12 L. Ed. 1170, 1189 ( 1850 ).