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Paul K, Esq.
Paul K, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 141
Experience:  10 years Exp., Great customer service, Prompt responses.
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I need to know how to annual a motion (now order) that was

Customer Question

I need to know how to annual a motion (now order) that was granted by me to amend a adversary complaint. I received a default judgement on the original adversary so refiling is not my advantage.

Do I have to file a motion to annul/repeal the order since I don't wish to proceed?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Paul K, Esq. replied 1 year ago.

Paul K, Esq. :

Hello, my name is XXXXX XXXXX I would love to assist you. Give me a moment to research your issue and I will answer promptly.

Paul K, Esq. :

Normally you file a Motion to Vacate the Order.

Paul K, Esq. :

and list the reasons why.

Paul K, Esq. :

What exactly happened or was granted that you want to change and maybe I can let you know the likelihood of success.

Paul K, Esq. :

Federal Rule 60(b) is the section you sight to for a Motion to Vacate the Judgment

Paul K, Esq. :

60(b)(2) is for newly discovered evidence, so if there was something you requested and got a judgment. Then you discovered more later, you can use that section to vacate the order.

Customer:

When I had originally filed an adversary complaint I listed the principal balance. Then during the process of issuing the summons, certificate of service, etc, the party served capitalized accrued interest so I filed a motion to amend the complaint to reflect the new balance. The motion was granted but I didn't know I would have to serve another summons and start the process over again.

Paul K, Esq. :

Ok. So did you get a default granted?


 

Paul K, Esq. :

Or not yet?

Customer:

The clerk entered a default judgement but the court has not yet entered a default judgement.

Paul K, Esq. :

What is the difference in award to you between the original complaint and amended complaint?

Customer:

$11,000

Paul K, Esq. :

So in the original, for example, you requested $20,000 and in the amended you requested $31,000.

Paul K, Esq. :

Has the opposing party acted like they would respond


 

Paul K, Esq. :

if you reissued the summons now?

Paul K, Esq. :

Basically, what I think you want to do is withdraw the amended complaint or motion to amend

Paul K, Esq. :

and proceed with default on the original, correct?

Customer:

In the original I requested $119,000. I have not filed an amended yet. Yes, they have responded trying to set aside the default judgement and saying if I submit the amended the court should ignore the deault judgement

Customer:

Yes

Customer:

If I don't file an amendend complaint what will happen?

Paul K, Esq. :

File a Motion to withdraw Motion to Amend


 

Customer:

Will the court just assume I didn't want to submit the amended complaint and go back to the original?

Paul K, Esq. :

and continue with the original Complaint


 

Paul K, Esq. :

Yes

Customer:

What would happen if I just did nothing?

Customer:

Meaning I fail to comply with the order

Paul K, Esq. :

I think the Court will wait for you to file it

Paul K, Esq. :

So it may be easier to withdraw.

Paul K, Esq. :

What I do often in these situations, is ask the particular judges clerk.

Paul K, Esq. :

YOu cant ask legal questions, but you can ask procedural ones.

Customer:

Do I need to explain why I wish to withdraw? I was going to explain I did not understand the true consequences of filing this motion

Customer:

I did talk to him. Very hard to get answers.

Paul K, Esq. :

So you can call and say "Procedurally, how do I withdraw my motion to amend? I am fine with the original complaint. I know all judges do it differently, so procedurally how does she/he prefer I do it."

Paul K, Esq. :

You dont really need to explain why


 

Paul K, Esq. :

Because that goes to the "legal" stuff they cannot discuss

Paul K, Esq. :

But they are supposed to tell you procedural things

Customer:

Are the likely to grant it since I was the idiot who initiated it?

Paul K, Esq. :

It is tough call. Some judges would because default did technically occur. Some will say, well default did occur, but now they are here, so we might as well proceed.

Paul K, Esq. :

Judges tend to, unfortunately, favor ruling on the merits of the case and allowing all parties to say their side of the issue

Paul K, Esq. :

So withdrawing the Motion to amend may be best.

Customer:

Ok, so now they have filed a motion to vacate clerk's enrty of default and opposition to motion for default judgement. What do I do now?

Paul K, Esq. :

Ok, you respond

Paul K, Esq. :

And say No, default was validly entered. The time lapsed

Paul K, Esq. :

They cant come in past the date.

Paul K, Esq. :

Let me look for a sample


 

Paul K, Esq. :

Vacating an order is hard on the person trying

Paul K, Esq. :

So if default is entered you are in position of power

Paul K, Esq. :

Here is a Florida court order

Paul K, Esq. :

It doesn tmatter where in florida, it will still help

Paul K, Esq. :

you can use what the judge says here to help. Copy alof of what he say and use it in your response

Customer:

I send this to the court? Or the defendant? Both?

Paul K, Esq. :

There are probably many more out there. Basically to vacate teh default he/she/it has to prove alot of stuff

Paul K, Esq. :

Serve it as "Response in Opposition to Motion to Vacate"

Customer:

Do I send this to the court? Or the defendant? Both?

Paul K, Esq. :

You serve it on both

Paul K, Esq. :

all pleadings must be served on both

Paul K, Esq. :

Here is another. A different court, but the standard of review and the Rule 60(b) stuff you can use all of it

Paul K, Esq. :

I have a hearing to get to, but I will check back today on this

Paul K, Esq. :

Throughout the day and tonight I will make sure I answer your question.

Customer:

Ok, Thanks

Paul K, Esq. :

Dont forget to provide a positive rating as I continue to work towards resolving your issue.

Paul K, Esq. :

Have a great weekend!!!!

Customer:

Yes, for sure

Paul K, Esq. :

There is really good stuff in those pleadings I sent, so use ALOT of it.

Paul K, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 141
Experience: 10 years Exp., Great customer service, Prompt responses.
Paul K, Esq. and other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.

Is there a deadline to respond after the clerk's entry for default? Is this the same 14 days as under rule 8002(a) for notice of appeals?

Expert:  Paul K, Esq. replied 1 year ago.
The party really is not supposed to respond after that. The Entry of default is the clerk stating on the record that the party is in default. If they come in later and try to respond, it is too late, they are already in default. So file the Motion for Default if you have not. The party can try to convince the judge to give them a second chance, but you can oppose that as well.

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