Keith Mack
A judgement notice can be voided in a number of ways, depending on the jurisdiction. In Florida, a void judgement is deemed to have never had legal force, whereas a voidable judgement has legal force until it is vacated. A motion to vacate a void judgement under Florida law may provide relief for a judgement debtor whose due process rights were violated. In US federal law, Rule 60(b) describes the practice of obtaining relief from judgements, and various remedies exist to obtain relief from final judgements.
| Characteristics | Values |
|---|---|
| What is a void judgement? | A void judgement is deemed to have never had legal force or effect. |
| What is a voidable judgement? | A voidable judgement is a judgement that has been made in error but has legal force and effect unless and until it is vacated. |
| What are the grounds for a void judgement? | Lack of personal jurisdiction, lack of subject matter jurisdiction, or failure to follow procedural requirements related to due process. |
| What are the grounds for vacating a judgement? | Clerical mistakes, oversight or omissions, identity theft, mistaken identity, or fraud. |
| How to file a motion to vacate a judgement? | File a written motion with the court, including a Notice of Motion, the Motion, Points and Authorities, and a Declaration providing evidence. |
| When to file a motion to vacate a judgement? | As soon as possible, within a "reasonable time", and within specific timelines depending on the jurisdiction (e.g. within 1 year for voidable judgements in Florida). |
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What You'll Learn
File a motion to set aside a void judgement promptly
A motion to set aside a void judgement can be filed by either party or by the court itself. A judgement may be void if the court issuing the judgement lacked subject matter jurisdiction, lacked personal jurisdiction over the defendant, granted relief that it had no power to grant, or if the judgement was procured by fraud. Another common way default judgements are found to be void is if the judgement was obtained after improper or fraudulent service, resulting in a lack of personal jurisdiction over the defendant.
A motion to set aside a void judgement should be filed promptly. There is no consensus on what constitutes a "reasonable time", but courts have referred to statutory limitation periods. Some courts have applied a six-month period, while others have applied a two-year or 180-day period. If the right to make a motion is lost due to the expiration of time limits, the only other remedy is by a new or independent action to set aside the judgement.
A motion to set aside a default judgement typically includes documents attached as exhibits, providing evidence supporting the claims made. These documents may include evidence of your residential or business address on the purported date of service, medical documentation, or proof that you are not the party named in the judgement in the case of mistaken identity.
The motion to set aside consists of four parts: the Notice of Motion, the Motion itself, the Points and Authorities, and the Declaration. The Notice of Motion informs the opposing party of when and where the motion will be heard. The Motion informs the court and the opposing party of what is being requested. The Points and Authorities explain the legal basis of the motion, and the Declaration provides evidence supporting the motion. These parts can be filed as separate documents or combined into one.
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Provide evidence of mistaken identity or identity theft
If a default judgment has been made against you due to mistaken identity or identity theft, you can ask the court to set it aside. You have 180 days from the first actual notice of the case to make this request. The court may set aside any void judgment or order on its own motion or the motion of either party.
A motion is a request made in a case asking the court to issue an order. Most motions are in writing. A written motion consists of four parts: the Notice of Motion, the Motion, the Points and Authorities, and the Declaration. The Notice of Motion lets the opposing party know when and where the motion will be heard. The Motion itself lets the court and the opposing party know what is being requested. The Points and Authorities explain the legal basis of the motion, and the Declaration provides evidence, sworn under penalty of perjury, supporting the motion. These parts can be filed as separate documents or combined into one.
The documents attached as exhibits to a motion vary depending on the situation, the grounds being claimed, and what is being attempted to be proven. If claiming mistaken identity or identity theft, you may want to provide proof that you are not the party named in the judgment. Any other proof of the theft, such as bills or IRS notices, may also be useful. You should tell the police that someone stole your identity, and ask for a copy of the police report.
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Prove lack of personal jurisdiction
A judgement or order may be void if the issuing court lacked personal jurisdiction over the defendant. This may be the case if the judgement was obtained after improper or fraudulent service.
To prove a lack of personal jurisdiction, you must demonstrate that you did not receive "actual notice" of the litigation against you. "Actual notice" means that you genuinely did not know about the lawsuit. This lack of knowledge cannot be due to your inexcusable neglect or avoidance of service. For example, if you can prove that service occurred at an old address, this may demonstrate a lack of personal jurisdiction.
To set aside a default judgement, you must file a motion within a reasonable period, typically within two years of the judgement. This motion should include documents that provide evidence supporting your claims. These documents may include proof of your residential or business address on the purported date of service, or proof that you are not the party named in the judgement if mistaken identity is claimed. Your motion must be served by a person over the age of 18 who is not a party to the case, and they must complete a proof of service form.
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Argue voidable vs void judgement
A void judgement and a voidable judgement are two related but distinct concepts in civil litigation. While the concepts are similar, the differences between them have serious and significant legal implications.
A void judgement refers to a civil judgement that is inherently defective. Once a judgement is found to be void, it is as if it never existed. A void judgement requires a violation of a defendant's fundamental due process rights. For example, if the plaintiff failed to notify and serve the defendant with the lawsuit, that would render the judgement void. A void judgement can be challenged at any time.
A voidable judgement, on the other hand, is one that is procedurally defective but not void. A voidable judgement continues to have legal force unless and until a judge decides to vacate it. In other words, a voidable judgement is not automatically invalidated. A motion to vacate a voidable judgement must be made within a specific timeframe, typically within one year after the entry of the judgement.
In the case of KB Home Fort Myers LLC v. Taishan Gypsum Co., the defendant argued that the judgement was void because the plaintiff never notified their attorneys about the case. The trial court agreed to void the judgement, but the Second District reversed this decision, holding that the judgement was voidable, not void. The Second District noted that the defendant waited seven years to challenge the default judgement.
To argue against a voidable judgement, one must provide evidence and legal grounds to support their claims. This may include documents such as evidence of residential or business address if claiming improper service, medical documentation if claiming excusable neglect, or proof of mistaken identity. It is important to act promptly when seeking to set aside a voidable judgement.
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Understand the difference between mistake, inadvertence, and excusable neglect
A “motion” is a request made in a case asking the court to issue an order. Most motions are in writing. A written motion consists of four parts: the Notice of Motion, the Motion, the Points and Authorities, and the Declaration. The Notice of Motion lets the opposing party know when and where the motion is scheduled to be heard, while the Motion itself lets the court and the opposing party know what is being requested. The Points and Authorities explain to the court and the opposing party the legal basis of the motion, while the Declaration provides evidence, sworn under penalty of perjury, supporting the motion.
The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. However, ignorance of the law or negligence in researching the law does not generally constitute an excusable mistake and is therefore not usually grounds for relief from a default judgment.
A mistake is an error, misconception, or misunderstanding, but there are different situations under which a mistake matters in law. For example, there is a difference between a mistake in a contract (where the parties understand the terms differently) and a mistake of fact (any error that is material to a transaction) or a mistake of law (a misconception about the legal effect of a situation). Inadvertence is an accidental oversight. Inadvertent negligence would be when a party is not aware of a risk but should have been aware of it and avoided it.
Excusable neglect is when a reasonable mistake of misconception or mistake of law can be considered excusable neglect and provide relief from judgment. However, in determining whether the neglect is excusable, California courts determine whether a reasonably prudent person under the same circumstances would have made the same error. This standard ensures that attorneys are held to a professional standard of care and prevents them from using excusable neglect as an excuse for malpractice.
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Frequently asked questions
A void judgment is deemed to have never had legal force or effect, whereas a voidable judgment has legal force and effect unless vacated.
Grounds for voiding a judgment include lack of personal jurisdiction, lack of subject matter jurisdiction, and failure to abide by procedural requirements related to due process.
A motion is a request made in a case asking the court to issue an order. Most motions are in writing and must be typed on 28-line pleading paper. The motion should include a Notice of Motion, the Motion itself, Points and Authorities, and a Declaration.
In Florida, if a judgment is voidable, a motion must be filed within 1 year of the entry of the judgment. If it is void, the motion must be filed within a "reasonable time". For identity theft or mistaken identity cases, the time limit is 180 days from the first notice of the case.
Common reasons for judgments to be voided include improper or fraudulent service, resulting in a lack of personal jurisdiction, and violations of due process rights.
