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Motion to Vacate

In the court system there are times when an individual may feel that they have not had a chance to present their case to the court, and after the judgment has been handed down they feel as if they had been able to present their case the judgment would not have turned out the way it did. In times like these it may be possible for the individual to file a motion to vacate. What exactly is a motion to vacate? How does a person go about filing a motion to vacate? Below are common questions asked regarding motions to vacate that have been answered by the Experts.

What is a motion to vacate?

A motion to vacate is an application to a court to take back a judgment or an order that had been previously handed down by the court. An individual may file a motion to vacate in a court that has a limited jurisdiction such as a district court; a motion to vacate may also be filed in Superior court. The motion to vacate must have a basis in one of the specific reasons that have been laid out in the Civil Rule 60. An individual must be able to prove that they did not have a chance to present their case to the court, in order to be granted a motion to vacate. If a person has had the chance to present their case they should not file a motion to vacate, they should be filing an appeal. There is a difference between a motion to vacate and an appeal. An appeal is made to a higher court to overturn the judgment made by the lower court, where a motion to vacate is made to the same court that handed down the ruling. Motions to vacate are not usually handed down, so the individual had better be sure that their motion is a solid one, because if the court feels that the motions to vacate is trivial, it may order that the individual pay all of the court costs.

What are possible grounds for a motion to vacate foreclosure sale?

It is possible to file a motion to vacate a foreclosure sale if the mortgage company did not properly serve the defendant. It would be a motion to vacate for lack of service, the lender then has the burden of proving that they did indeed serve the individual.

How to file a motion to vacate?

If an individual needs to file a motion to vacate there are several steps that they need to follow in order to accomplish filing a motion to vacate. To get started an individual is going to need to get in order several documents that they are going to need to fill out. These forms in no particular order are a declaration form, on order to show cause, order on motion to vacate judgment, motion for order to show cause in regards to vacation of judgment, a copy of the order that they are attempting to have vacated, and an affidavit of service. An individual may retain a lawyer who would be able to help in securing these documents, along with in filling them out. A judge’s signature will need to also be obtained. Then the other party will be served, and if the motion to vacate is approved a hearing date will be set, which the individual will need to attend. There may also be additional documents pertaining to the reasoning for the motion to vacate that may need to file along with the above mentioned forms.

A motion to vacate is a filing used in the court systems when an individual feel that their case was not presented. Motions to vacate are used in several cases, for example there is a motion to vacate dismissal, motion to vacate judgment, motion to vacate foreclosure sale, and motion to vacate plea just to name a few. An individual may need to retain a lawyer when pursuing a motion to vacate, but find out answers to their questions it may be in their best interest to ask an Expert first.
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