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How to file an opposition to a motion to vacate a judgement?
Asked about 2 years ago - Broomfield, CO
I won a judgement on default per he did not show up at the court hearing. I just recieved a file to vacate the judgement on per not being served in the proper form, however I have proof from the Police Department that they attempted to serve the papers, they spoke to him on the phone as well, and he declined being served. That was all submitted at the time and the judge said that would work because the police dept did what they could and he was avoiding the case. Please help now what's my next step to oppose this motion to vacate the judgement?
Attorney answers (2)
What court are you in? What does the police department return of service say? Do you actually have a judgment entered? If the default judgment entered, then presumably the judge looked at the service and considered it sufficient. Usually the judge catches a bad return of service document and refuses to enter judgment. When a motion to vacate due to bad service is filed, several issues arise (assuming that judgment actually entered, just having a hearing and the person not appearing is not a judgment, a written order of the court "entering judgment" for and against and in a certain amount is judgment.
Assuming you have a real judgment.
First, was the motion to vacate filed within 6 months of the date of the judgment. If not, the other side is going to have a much harder time vacating the judgment because the rules provide that the other side must prove several things in addition to bad service.
Second, does the return of service from the police actually say they either served the "complaint" and "summons" on a person over the age of 18 at the residence, or on the defendant at some other place? If not, if the return says "attempted" then you do not have good service, and the default is probably no good.
If you think you have a good judgment and good service after reading this, pay for an hour of an attorney's time to review all your stuff and tell you how much it would cost for them to "ghost write" a response to the motion to vacate for you (under CRCP 11(b) if the lawyer is unfamiliar with the new rule on unbundled legal services.)
jim
Assuming you have a real judgment.
First, was the motion to vacate filed within 6 months of the date of the judgment. If not, the other side is going to have a much harder time vacating the judgment because the rules provide that the other side must prove several things in addition to bad service.
Second, does the return of service from the police actually say they either served the "complaint" and "summons" on a person over the age of 18 at the residence, or on the defendant at some other place? If not, if the return says "attempted" then you do not have good service, and the default is probably no good.
If you think you have a good judgment and good service after reading this, pay for an hour of an attorney's time to review all your stuff and tell you how much it would cost for them to "ghost write" a response to the motion to vacate for you (under CRCP 11(b) if the lawyer is unfamiliar with the new rule on unbundled legal services.)
jim
Dear ?,
First, you find the statutes regulating service of complaint and summons and find out whether the method you used was authorized. From your question, it appears your method most likely was proper..
If you did use a proper method of service, then you get an affidavit (sworn statement) from your server as to the facts you say took place in your question. Now, generally speaking, every server is required to make out a standard affidavit as to what he/she did, but unless this affidavit, which you should already have a copy of, specifically states the defendant declined service, then you must get another which does specifically so state. You attach this affidavit to your motion and subpoena the server to testify at the hearing on the motion for relief from default.
The primary legal principle to keep in mind is that the service statutes are designed to give the defendant actual notice of a lawsuit against him. Since it seems that was accomplished here, you have a strong case for sustaining your default judgment.
But you should keep in mind that American law in general is founded on a bedrock principle that every one gets their day in court and what that means in relief from default proceedings is that most judges will bend over backwards to give a defendant a chance to have his day in court, i.e., defend on the merits. So you should not be surprised if, though you may be entitled to have defendant's motion denied by a strict application of the written law, the judge finds he must vacate the default in the interest of justice.
Yours sincerely,
Tim Provis
Wis. Bar No. 1020123
Cal. Bar No. 104800
First, you find the statutes regulating service of complaint and summons and find out whether the method you used was authorized. From your question, it appears your method most likely was proper..
If you did use a proper method of service, then you get an affidavit (sworn statement) from your server as to the facts you say took place in your question. Now, generally speaking, every server is required to make out a standard affidavit as to what he/she did, but unless this affidavit, which you should already have a copy of, specifically states the defendant declined service, then you must get another which does specifically so state. You attach this affidavit to your motion and subpoena the server to testify at the hearing on the motion for relief from default.
The primary legal principle to keep in mind is that the service statutes are designed to give the defendant actual notice of a lawsuit against him. Since it seems that was accomplished here, you have a strong case for sustaining your default judgment.
But you should keep in mind that American law in general is founded on a bedrock principle that every one gets their day in court and what that means in relief from default proceedings is that most judges will bend over backwards to give a defendant a chance to have his day in court, i.e., defend on the merits. So you should not be surprised if, though you may be entitled to have defendant's motion denied by a strict application of the written law, the judge finds he must vacate the default in the interest of justice.
Yours sincerely,
Tim Provis
Wis. Bar No. 1020123
Cal. Bar No. 104800
