If you have obtained a judgment by losing a legal case involving a debt, you may be able to have the judgment vacated. To try to do this, you would need to file a Motion to Vacate.
If it is granted, a Motion to Vacate will suspend the original judgment and, at the same time, will request a new hearing. You will need to prepare for the hearing and will need to be ready to argue for dismissal of the case.
So What Steps Do I Need to Take?
The following steps will yield results if followed carefully (depending upon state law):
1. You will need to determine the court’s procedural laws for your state. By researching this information, you will learn how to draft the motion and what explanations justify dismissing a judgment. It is crucial that you perform this research. This will allow you to learn for what reasons a case can be thrown out on a technicality.
2. Take your completed Motion to Vacate to the originating court’s court clerk and file it. Ask if there are any other documents which need to be filed. You will need to pay a filing fee when you file the motion and you should request certified copies. Mail the original to the plaintiff, who is most likely your creditor or the collection agency which initially filed the suit. Be sure that you mail the motion by certified mail, return receipt requested.
3. You will need to calendar the date and time of the hearing. Make sure that the court clerk has your current address so the notice of hearing can be mailed to you.
Normally, the plaintiff has 35 days to respond to the motion. Sometimes, the plaintiff will try to settle out of court or will not show up at the hearing. If the plaintiff does not show up, you win by default!
You should demand that the creditor file dismissal paperwork and require that the judgment be withdrawn by the credit reporting agencies if your creditor wants to settle out of court. Be sure to commit your agreement to writing in the form of a legal agreement.
“Unpaid’ judgments are very damaging and “paid” judgments are not much better! Because of this you should do everything in your power to negotiate a complete deletion of the judgment from your credit report.
You will need to be prepared to prove the creditor wrong if the case does go to court. The creditor, being the plaintiff, is responsible for proving its claims.
Some thoughts to keep in mind include:
1. Be ready to attack the creditor’s documentation. For instance, demand that the creditor produce a copy of the original contract for the debt.
2. It is imperative that you review your state’s statute of limitations law to determine if the debt is outside of the statute of limitations. You have no legal obligation to pay this debt if it is, indeed, outside of the statute of limitations. If this is the case, the matter will be dismissed.
3. If it appears that a judgment is in your future, think about employing a consumer credit attorney for advice. Consumer credit attorneys make their living handling cases just like yours and will be able to guide you through the process and offer valuable advice.
Whatever you decide to do, you should not sit still and allow a creditor to place a questionable judgment on your credit report!
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