Essential Components of the Motion
Every motion to vacate must include: a caption with the correct court and case number, a statement of the grounds for relief (citing the specific rule), a declaration or affidavit with facts supporting your grounds, a proposed answer to the underlying complaint showing your meritorious defense, a certificate of service, and a proposed order for the judge to sign. Missing any of these can result in denial.
The Supporting Declaration
The declaration is the most important part. Write it in first person, under penalty of perjury. State the facts chronologically: when you first learned of the lawsuit, why you did not respond, when you discovered the judgment, and what defense you have to the debt. Attach supporting documents -- medical records, travel records, proof of payment, or evidence of improper service.
Filing and Service Requirements
File the motion with the clerk of the court that entered the judgment. Pay the filing fee (or request a fee waiver if you qualify). Serve a copy on the plaintiff's attorney by mail or the method required by your local rules. Keep proof of service. Most courts will schedule a hearing -- you must attend.
Frequently Asked Questions
How much does it cost to file a motion to vacate?
Filing fees vary by court. In many state courts, the fee is $0-75 for a motion in an existing case. If you cannot afford the fee, you can file a fee waiver application. Federal courts charge no additional fee for post-judgment motions in existing cases.
How long does the process take?
From filing to hearing, typically 30-90 days depending on the court's calendar. Some courts allow the motion to be decided on papers without a hearing. If granted, you will need to file an answer to the original complaint within 20-30 days.
What happens if my motion is denied?
You can appeal the denial, typically within 30 days. You can also file a motion for reconsideration if you have new evidence. Alternatively, filing for Chapter 7 bankruptcy can eliminate the debt regardless of the judgment.
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