A Motion to Vacate is a written request sent to a judge for the withdrawal or removal of a previous order (judgment). You might want to send this request if there were clerical mistakes or you’ve found new evidence to support your case.
Although it’s not common for judges to approve a Motion to Vacate, they will consider it if you have strong legal grounds backing your request. This is where a lawyer can help you.
On ContractsCounsel, an online legal network connecting clients with vetted lawyers, you can hire a lawyer with years of experience in assisting people with getting their Motion to Vacate approved.
Read the rest of this article to learn more about the Motion to Vacate, how it works, and what you need to ensure a judge approves it.
Is a Motion to Vacate the Same as an Appeal?
A Motion to Vacate is not the same as an appeal. While an appeal requests that a lower court’s decision be adjusted, a Motion to Vacate requests the same court to take back their decision.
If a judge approves your Motion to Vacate, the best outcome is that they will deem the previous judgment void and specify that a new trial or hearing will occur.
When is a Motion to Vacate Approved?
Judges are more likely to approve your Motion to Vacate if you can prove the following things, depending on your case:
- Neglect or errors in the previous judgement. This can include clerical mistakes.
- Misfortune or something beyond your control that prevented you from appearing at the trial.
- Fresh evidence. You might have learned of new evidence that could have resulted in a different judgment.
- Fraud. If the other party is suspected of fraud or misrepresentation, you can try to get a new order.
- That the previous judgment is considered void, which is usually as a result of a judge not having the authority to issue the order.
- Improper notice. This is when you didn’t receive advance notice that someone filed a case against you.
How Do You File a Motion to Vacate?
There are specific steps to follow if you want to file a motion to vacate.
Step 1 : At your local court clerk’s office, request a Motion to Vacate judgement form to fill out.
Step 2 : Enter your case details in the form. It’s important for the motion to include the following information:
- The court name, case number, and parties involved.
- What happened and why you’re requesting a motion.
- What you would like the court to do to rectify the situation. An example would be to approve a new hearing.
Step 3 : Include evidence in your motion. This supports your case and should display proof that you experienced improper service. The evidence should also include prior court filings, and any declarations or affidavits. You also want to cite any facts or laws that apply to your case.
Step 4 : Serve the other party formally and personally with the Motion.
Step 5 : Wait for the other party to respond and only reply if this is allowed in your location.
Step 6 : If you get another hearing, you might need to confirm it. In some locations, you’ll have to contact the clerk’s office so that you let them know you want the hearing to occur on the scheduled day. If you don’t do this, your hearing will be cancelled.
Step 7 : Attend your hearing. If you disagree with the judge’s decision, you might want to file a Motion for Revision.
What you’re required to do when filing a Motion to Vacate varies in different counties, so it’s worth contacting a lawyer for assistance. They will have in-depth knowledge about the applicable rules so you don’t miss anything that could invalidate your request. They will also ensure that you file everything on time and with the appropriate evidence to support and strengthen your case.
What Happens at a Hearing for a Motion to Vacate?
To ensure a successful hearing, you should follow these tips.
- Bring all the appropriate paperwork for your case, such as court papers.
- At the courtroom, tell the clerk your name, case number, and case name. You’ll have to wait for the judge to enter the room.
- You will be allowed to speak to the judge about what you’re requesting and why. You probably won’t testify or have witnesses.
- The judge might ask you questions, which you should answer succinctly and clearly.
What Mistakes Should You Avoid When Filing a Motion to Vacate?
One of the most common mistakes when filing a Motion to Vacate is not having strong enough grounds for doing so. The courts need to recognize the reason or it will be invalid.
Other reasons include:
- Poor arguments. If your arguments lack detail or you’ve requested too many motions, the court might not take your case seriously.
- Lack of evidence. You need to ensure you collect the appropriate documents and evidence when claiming fraud or other reasons for filing the motion.
- Not considering the original judgment. You should show solid proof of how the previous judgment failed you, or it won’t be considered.
Do You Need a Lawyer for a Motion to Vacate?
It’s highly advisable to hire a lawyer for a Motion to Vacate because of the strict deadlines, and complex rules and processes involved. These can be stressful to undertake if you’ve never dealt with them before. It’s also a good idea because courts don’t take Motions to Vacate lightly.
Here is how a lawyer will assist you through every step of filing a Motion to Vacate.
- Since you’ll probably need to include a declaration (or affidavit) with your Motion, your lawyer will assist you in preparing it so that it’s done correctly.
- Your lawyer will give you peace of mind by understanding and explaining all the laws that apply to your case.
- They will help you explore the best options when filing a Motion and if your case is valid in the eyes of a judge.
- Your lawyer will file your motion on your behalf.
- They will also represent you at the hearing, guiding you on everything you should and shouldn’t do to support your case.
