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Normally you file a Motion to Vacate the Order.
and list the reasons why.
What exactly happened or was granted that you want to change and maybe I can let you know the likelihood of success.
Federal Rule 60(b) is the section you sight to for a Motion to Vacate the Judgment
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.
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.
Ok. So did you get a default granted?
Or not yet?
The clerk entered a default judgement but the court has not yet entered a default judgement.
What is the difference in award to you between the original complaint and amended complaint?
So in the original, for example, you requested $20,000 and in the amended you requested $31,000.
Has the opposing party acted like they would respond
if you reissued the summons now?
Basically, what I think you want to do is withdraw the amended complaint or motion to amend
and proceed with default on the original, correct?
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
If I don't file an amendend complaint what will happen?
File a Motion to withdraw Motion to Amend
Will the court just assume I didn't want to submit the amended complaint and go back to the original?
and continue with the original Complaint
What would happen if I just did nothing?
Meaning I fail to comply with the order
I think the Court will wait for you to file it
So it may be easier to withdraw.
What I do often in these situations, is ask the particular judges clerk.
YOu cant ask legal questions, but you can ask procedural ones.
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
I did talk to him. Very hard to get answers.
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."
You dont really need to explain why
Because that goes to the "legal" stuff they cannot discuss
But they are supposed to tell you procedural things
Are the likely to grant it since I was the idiot who initiated it?
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.
Judges tend to, unfortunately, favor ruling on the merits of the case and allowing all parties to say their side of the issue
So withdrawing the Motion to amend may be best.
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?
Ok, you respond
And say No, default was validly entered. The time lapsed
They cant come in past the date.
Let me look for a sample
Vacating an order is hard on the person trying
So if default is entered you are in position of power
Here is a Florida court order
It doesn tmatter where in florida, it will still help
you can use what the judge says here to help. Copy alof of what he say and use it in your response
I send this to the court? Or the defendant? Both?
There are probably many more out there. Basically to vacate teh default he/she/it has to prove alot of stuff
Serve it as "Response in Opposition to Motion to Vacate"
Do I send this to the court? Or the defendant? Both?
You serve it on both
all pleadings must be served on both
Here is another. A different court, but the standard of review and the Rule 60(b) stuff you can use all of it
I have a hearing to get to, but I will check back today on this
Throughout the day and tonight I will make sure I answer your question.
Dont forget to provide a positive rating as I continue to work towards resolving your issue.
Have a great weekend!!!!
Yes, for sure
There is really good stuff in those pleadings I sent, so use ALOT of it.
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?
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