After handling hundreds of cases, attorneys become accustomed to the ups and downs of litigation. However, most pro se litigants don’t deal with legal anxieties on a regular basis. One of the most worrisome situations for any defendant is an Entry of Default Judgment against them. This occurs when you, as a defendant, aren’t available to present your side of the case. If this happens, you could face wage garnishment or be on the hook for a significant amount of money or whatever relief the plaintiff requested.
Fortunately, in the legal world, it’s not over ’til it’s over. If you have a good reason, you can file a Motion to Vacate Default Judgment. The court will listen to the evidence and determine if the case should be heard again. Here’s what litigants should know about the process.
What Is a Default Judgment?
A Default Judgment means that the plaintiff won the case because the defendant failed to appear. In many courts, there are two parts to the entry of a default judgment. First, the plaintiff has to obtain what is called an entry of default from the court clerk’s office. The defendant can challenge entry of default. In some courts, it’s as easy as paying a small fee. You don’t have to explain anything.
If the defendant doesn’t challenge the entry of default, the plaintiff can then move for default judgment. If the plaintiff is successful in getting a default judgment order, the defendant would need to file a Motion to Vacate the order. This is a harder job than defeating the entry of default. The deadline for filing a Motion to Vacate may vary depending on the reason, but in general, parties have anywhere from 30 to 180 days and no more than a year.
How to File a Motion to Vacate
The losing party can file a Motion to Vacate along with evidence showing the court why it should withdraw the order and rehear the case. This document is also called a Motion to Set Aside or a Motion for Order to Show Cause. Once this document is filed, a hearing will be scheduled to decide on the issue. In some cases, this process is conducted ex parte, which means that the other party isn’t present. Alternatively, the judge may rule on the case at the time of the hearing, which is more common in general sessions or small claims courts.
What Happens Next?
Courts don’t withdraw their decisions very often, but it’s possible, especially if the defendant has a good reason for losing the claim and can present a meritorious defense. Below are some acceptable reasons for vacating an order of default judgment.
- Improper service
- Clerical or factual errors
- Medical emergencies
- Unavoidable circumstances
- Fraud or misrepresentation
- Discovery of new evidence
- One of the parties died before the judgment
- The judgment has been satisfied
- The judgment is void
If the judge overseeing the hearing believes that the defendant didn’t have a fair chance to present all of the facts, the case may be reheard in the same court. If the judge denies the Motion to Vacate, the defendant can appeal this decision, but the deadline is usually much shorter.
Appealing a Judgment
It’s important to note that filing a Motion to Vacate isn’t the same as appealing a judgment or appealing a denial. Even if the judge grants the motion and sets aside the judgment, the case will be reheard in the same court. Alternatively, the losing party can file a Notice of Appeal by completing the appropriate forms, filing these documents with the court and serving the other party. In other words, an appeal asks a higher court to review the decision, and a Motion to Vacate asks the lower court to reconsider the case.
Risks of Filing a Motion to Vacate
Filing a Motion to Vacate is just one alternative for parties facing a losing judgment. An appeal may be more appropriate depending on the facts of the case. Although these motions can be helpful in situations where extenuating circumstances have affected the defendant’s ability to challenge the case, there’s always the risk that the request will be denied. The defendant could be liable for attorney’s fees and other costs if the court decides that the motion is frivolous or unjustified. That’s why it’s important for any litigant to understand all of the alternatives as well as the intricacies of the process and the evidence that’s required.