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How long does a defendant have to file a motion to vacate a judgment if new evidence is discovered indicating breach agreement?

Tempe, AZ |
Filed under: Litigation

If a tenant discovers a copy of the landlord payment ledger that shows the tenant was never given credit for the rental concession for the past three month and the landlord filed a forcible detainar against the tenant for more then the tenant owed and the landlord refuse the correct payment from the tenant. The landlord acknowledged the error but would only except full payment that includes additional late fees and court cost for a case that has not yet been filed. Eventually landlord files case and wins because the rent was unpaid due to additional late fees caused by the landlord not excepting the tenant correct payment. A five day notice and complaint were served for the wrong amount. The Tenant just received copy of the payment ledger that shows the tenant never received the concessin

Attorney Answers 2


I am not admitted to practice in Arizona, so you should get counsel from a lawyer practicing in your state. Hopefully, such a lawyer answers your question on Avvo. If you are in Arizona Superior Court, however, Rule 60 may help you with your question. Note also that there appear to be supplemental rules depending on the county in which your action was pending - not sure if any of those rules apply based on a preliminary review. You should contact a lawyer as you do not want to miss a deadline for filing any such motion (as doing so may bar you from seeking the relief you want).

Rule 60. Relief from judgment or order.

(a) Clerical mistakes. Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on motion of any party and after such notice, if any, as the court orders. During pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.

(b) Correction of error in record of judgment.

1. When a mistake in a judgment is corrected as provided by subdivision (a) of this Rule, thereafter the execution shall conform to the judgment as corrected.

2. Where there is a mistake, miscalculation or misrecital of a sum of money, or of a name, and there is among the record of the action a verdict or instrument of writing whereby such judgment may be safely corrected, the court shall on application and after notice, correct the judgment accordingly.

(c) Mistake; inadvertence; surprise; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just the court may relieve a party or a party's legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(d); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged, or a prior judgment on which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be filed within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment or order was entered or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order or proceeding, or to grant relief to a defendant served by publication as provided by Rule 59(j) or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

(d) Reversed judgment of foreign state. When a judgment has been rendered upon the judgment of another state or foreign country, and the foreign judgment is thereafter reversed or set aside by a court of such state or foreign country, the court in which judgment was rendered in this state shall set aside, vacate and annul its judgment.

(Amended July 14, 1961, effective Nov. 1, 1961; amended July 23, 1976, effective Oct. 1, 1976; amended Sept. 15, 1987, effective Nov. 15, 1987.)

Mr. Thomas is licensed to practice law in Massachusetts. This response is not legal advice and does not create an attorney/client relationship. This response is in the form of legal education and is intended to provide general information about the matter within the question. Often, the question does not include significant and important facts and timelines that, if known, could significantly change the reply. Mr. Thomas strongly advises the questioner to confer with an attorney to make sure he or she gets all relevant information to make informed decisions about the subject matter.

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As indicated in the answer of the other attorney who cited Rule 60. Generally the time frame is 6 months. If you think you have valid grounds to vacate a judgment you need to move as fast as possible was you learn of the new evidence. If the new evidence is a matter which could have and should have been raised when the case was active you will not succeed.

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