The Effect of a Motion to Vacate


In a civil lawsuit, when the plaintiff wins the case, a judgment is entered against the defendant. In most cases, it is a monetary judgment, which serves as a legal determination that the defendant owes money to the plaintiff. Under certain circumstances, the defendant may file a motion to vacate the judgment, which, if granted, essentially erases the judgment and puts the parties back where they were before the judgment was entered. The most common scenario for a motion to vacate to be filed is when a default judgment is entered because the defendant failed to appear for court.

Motion to Vacate vs. Appeal

If a plaintiff does not agree with a judgment that was entered against him, he may have two legal options. The first is to appeal the judgment. An appeal basically asserts that the court made a legal error during the trial and therefore the verdict, or in this case the judgment, was erroneous. A motion to vacate, on the other hand, asserts that the judgment should not have been entered because the defendant was not given an opportunity to defend himself. A motion to vacate is like asking for another chance to defend the lawsuit. If successful, a motion to vacate puts the parties back to the same position they were in before the trial and gives them another opportunity to try the case.


Motions to vacate are not readily granted. In most jurisdictions, a defendant must convince the court that she has a good reason for requesting the judgment be vacated. The most common situation, and corresponding reason, is that the defendant was not properly served with notice of the lawsuit and trial and therefore did not appear for the trial. Rules of civil procedure require that a defendant be given proper legal notice and an opportunity to be heard before a judgment can be entered. If the plaintiff failed to serve the defendant by an acceptable method of service, then a motion to vacate may be considered. Other possible excusable reasons include a death in the immediate family or a serious medical emergency that prevented the defendant from appearing.

Meritorious Defense

Aside from having a good reason for not appearing to defend the lawsuit at the original trial, a defendant must also have a meritorious defense to the lawsuit. In essence, the defendant must be prepared to actually defend the lawsuit with a legitimate defense if given a second chance. The court will not vacate a judgment just to have the parties show up at a second trial when the defendant has no defense, causing the same result as if the court had never vacated the original judgment.


In order to vacate a judgment, the defendant must file a motion to vacate with the original court. Most jurisdictions have a statue of limitations, or time frame within which the motion to vacate must be filed. Time frames will vary but most are a year or less from the date of the original judgment. The original plaintiff must then be served with the motion. The judge may rule on the motion without a hearing or may order the parties to appear for a hearing and then make a ruling.

Related Searches


Promoted By Zergnet


Related Searches

Check It Out

4 Credit Myths That Are Absolutely False

Is DIY in your DNA? Become part of our maker community.
Submit Your Work!