February 04, 2013

Motion to Vacate Obama's Judgment

A default judgement is obtained when the defendant does not appear at a heairng or neglects to file an answer to the summons and complaint. A motion to vacate default judgement is a written request to the Court to set aside the judgement for a valid reason. A motion to vacate a judgement is different than an appeal to a higher Court. An appeal is a request to a higher Court to examine the ruling and trial record of the lower Court to determine if a procedural mistake was made by the lower Court which resulted in an incorrect ruling.

A motion to vacate judgement can be based upon many grounds. One of the primary reasons for the motion is due to improper service of the summons and complaint resulting in the failure of  the Court to achieve jurisdiction over the defendant. Another reason for the motion is the Court does not have subject matter jurisdiction over the defendant.

The motion to vacate judgement must accurately state  a copy was provided to the plaintiff/plaintiff's attorney. The movant contacts the court for a hearing date on which the merits of the motion are argued, and either the Court or the movant ensures that all parties get written notice of the date and time of the hearing.

The judgement previously entered by the Court is presumed to be correct. The movant has the burden of proving the facts alleged in the motion and his right to have the judgment vacated.

If default judgement is not vacated, enforcement and discovery of the judgement may begin.

FRCP Rule 69 Execution.

FRCP 69(a)(2), Obtaining Discovery. In aid of the judgment or execution, the judgment creditor or a successor in interest whose interest appears of record may obtain discovery from any person—including the judgment debtor—as provided in these rules or by the procedure of the state where the court is located.

FRCP Rule 70. Enforcing a Judgment for a Specific Act

FRCP Rule 70(a) Party's Failure to Act; Ordering Another to Act. If a judgment requires a party to convey land, to deliver a deed or other document, or to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be done—at the disobedient party's expense—by another person appointed by the court. When done, the act has the same effect as if done by the party.

FRCP Rule 70(b) Vesting Title. If the real or personal property is within the district, the court—instead of ordering a conveyance—may enter a judgment divesting any party's title and vesting it in others. That judgment has the effect of a legally executed conveyance.

FRCP Rule 70(c) Obtaining a Writ of Attachment or Sequestration. On application by a party entitled to performance of an act, the clerk must issue a writ of attachment or sequestration against the disobedient party's property to compel obedience.

FRCP Rule 70(d) Obtaining a Writ of Execution or Assistance. On application by a party who obtains a judgment or order for possession, the clerk must issue a writ of execution or assistance.

FRCP Rule70(e) Holding in Contempt. The court may also hold the disobedient party in contempt.

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