Motion To Vacate Judgment in North Carolina

A motion to vacate judgment is a request to a court to nullify or withdraw a decision that it has made. An individual might submit a motion to vacate a default judgment for a variety of reasons. A lawyer consultation with a North Carolina lawyer would help a person understand when filing a motion to vacate a judgment would be the right move to make in their case.

When Can a Motion To Vacate Judgment Be Granted in North Carolina?

A motion to vacate a judgment in North Carolina may be granted for any of the following:

• Default Judgment: The judgment could be a default judgment. A default judgment is entered in a case because the person or entity named as a defendant in a lawsuit does not file an answer to the complaint within the time the law allows, i.e., usually 30 days. When the named defendant does not appear in the case, answer the complaint and defend themselves, the court can enter a judgment against them.
  • The defendant may seek to vacate a judgment on the grounds that they failed to file their response to the complaint because of a mistake or excusable neglect.
• Fraud: If the judgment was obtained by fraudulent misrepresentation of some kind, a court would vacate it. If the party to a lawsuit could produce evidence to prove that the other party won a judgment in their favor, because they made a fraudulent misrepresentation, the court should vacate the judgment.
• Lack of Jurisdiction: If the court that issued the judgment did not have jurisdiction, which is essentially the legal authority to hear and decide a case, then any judgment issued would be null and void and would have to be vacated.

When one person files a civil lawsuit against another party, an individual or an entity who is referred to as the “defendant,” e.g., a business, they must serve process on the defendant. This means that they must generally deliver a copy of the complaint they filed in the court and a summons.

A summons formally notifies the defendant that they must appear in court and answer the claims in the complaint filed by the plaintiff. This gives the defendant the opportunity to present their defense and avoid a judgment in favor of the plaintiff and against the defendant.

The court documents must be given to the defendant person or business in a particular way. The plaintiff cannot deliver the complaint and the summons to the defendant themselves. Usually, a plaintiff hires a process server who is a professional who is in the business of serving process, i.e., the complaint and summons.

Process may be served by personal delivery or by certified restricted mail. If service of process is by mail, it must be shown with a return receipt signed by the defendant. The plaintiff, or their civil lawyer, must save the signed receipt to prove service of process.

If process is delivered in person, the defendant or an adult who lives in the defendant’s home must receive the documents personally.

The court requires that proof of service be filed with the court. The individual who served the documents on the defendant must complete an affidavit of service and file it with the court. This is a sworn statement which should state the following:

• The name of the person who received the service
• The date on which service took place
• The location at which the service was made
• The method in which service was made, whether by mail or hand delivery
• A description of the person who was served, if they were served in person
• How the person serving the papers knows the person served was old enough to receive it
• The name, address, and telephone number of the person who served the papers

If the service was by mail, the process server would attach the return receipt with the other party’s signature to the affidavit of service.

This service of process is a requirement in all civil cases filed in civil courts in North Carolina.

Now, in a debt collection case, for example, or any other kind of case for that matter, if the defendant were able to prove that the declaration, or affidavit, of service, contained fraudulent misstatements and the process was never served, this would be grounds for vacating a judgment in the case. A North Carolina collection attorney would be able to advise a person in this situation.

A number of different kinds of judgments might be made by a court in family law matters. In cases in which the parties seek dissolution of their marriage, the parties are often able to resolve some of the issues they have, e.g., division of their property and debt, and only one or two issues may remain for a court to decide after a trial. Some of the issues that might be decided in a final judgement would be the following:

• Divorce: The court may grant a final judgment of dissolution of the marriage.
• Child Custody: The court may decide on who has custody of the child or children of the marriage, both legal and physical. If you have questions, you may need to contact a North Carolina child custody lawyer
• Visitation: If one parent has sole physical custody, the court might grant the other parent visitation according to a schedule that would be spelled out in the final judgment.
• Spousal Support: The final judgment might order one of the spouses to pay spousal support to the other.
• Child support: The final judgment might order one of the spouses to pay child support to the other.

In any of these cases, if the judgment was made as a result of fraudulent misrepresentation, e.g., one spouse misrepresented their income, the court lacked jurisdiction or the judgment was a default judgment and the other party never appeared to present their case, the party who feels the judgment is unfavorable to them might move to vacate the judgment.

Again, if a party to a divorce who was the defendant can show that the affidavit of service was fraudulent and they were never served and did not appear and defend the case because of this, they might well succeed with a motion to vacate judgment.

In North Carolina, What Are the Steps for Filing a Motion To Vacate Judgment?

The steps for filing a motion are to prepare it in the manner required by the rules of civil procedure in North Carolina and to file it with the clerk of the court that issued the judgment. The last point is critical. The motion must be filed with the court that issued the judgment it seeks to vacate.

The motion would have to include a statement as to the reasons for which the motion should be vacated and the evidence available that supports it. Depending on the nature of the evidence, it may be possible to submit the evidence with the motion. Or the party making the motion may have to request a hearing at which they would present the evidence that supports the motion.

What if the Evidence Is Not Accepted by the Court?

If the evidence that a party submits with its motion to prove the facts that support it is not accepted by the court, then the motion would not be granted. It would be denied. The person who makes a motion that depends on proving certain facts, e.g., that the judgment in the prior case depended on a fraudulent misrepresentation made by the prevailing party, has to produce competent evidence to prove the facts on which their case depends.

If they fail to present competent evidence to prove the facts they need to prove, they would not succeed with their motion. It is possible that the court would tell the individual who made the motion in what way their evidence is not sufficient. Then they might be able to correct the problem and submit the motion again with the right evidence.

If they cannot correct the problem with their evidence, they may have to accept denial of their motion.

Do I Need a North Carolina Lawyer for Help With a Motion To Vacate Judgment?

If you have a judgment against you in a family law case that you think should be vacated, you want to consult a North Carolina family lawyer. You need a qualified lawyer to represent you in making a motion to vacate a judgment. Your lawyer can review the case and determine whether evidence must be submitted with the motion in order to succeed.

If you need to vacate an adverse judgment to protect your rights, you need a lawyer to make sure you present your best possible case.