Help Getting Judgement Vacated?!?!

[jhern87]

What is the name of your state (only U.S. law)? Oregon

So I have a judgement against me and am going to try and negotiate a settlement with the plaintiffs attorney. I've been in contact with an attorney (for myself) and he feels that I could file a motion for not being served properly but I'm thinking about trying to settle with them first and using that as a fallback plan and or possible negotiation leverage.

It's my understanding that sometimes you can have them file a vacatur of judgement as part of the settlement but I'm just curious as to what exactly I need from them. I've tried googling it and haven't found anything. If someone could let me know exactly what I need to do it would be greatly appreciated, thanks!

 

[racer72]

A court is the only entity that can vacate a judgment, the judgment holder can not. The only thing the judgement holder can do is tell the court the judgement has been satisfied. If you truly owe the debt, trying to have the judgement vacated is just going to waste your time and money.

 

[justalayman]

actually there are actions a judgment creditor can take to have the judgment vacated in many situations. I do not know the mechanisms but from what I recall, it is fairly complex and labor intensive so I would not expect a creditor to do this without some additional compensation, above what the judgment itself calls for.


I believe it was debtcollector` that laid out the process here at one time. I would either research the archives or hope he comes around and explains the process again.

 

[dcatz]

A successful Motion to Vacate only sets the clock back to the start of the original case, allowing the OP the opportunity to litigate the merits of the claim against him. The motion must be accompanied by a response (ORCP 71 B(1)). In another post
https://forum.freeadvice.com/debt-collections-84/collector-has-my-name-spelled-incorrectly-04290.html#post3250687,
the OP acknowledged having an obligation on which he’d made only “a few payments”. Does he have a response and does he really want to litigate the claim? In short, it does not appear that the OP understands the implications of vacating a judgment, but he has counsel and that’s strategy that should be left to them.

I suspect that the procedural steps to which justalayman may allude involve (1) the parties first stipulating to vacate a judgment and (2) the plaintiff then dismissing the case so that it is not incumbent on the defendant to respond. This is a sufficient means to accomplish what the OP seems to desire, but it entails the creditor’s cooperation and additional expense, which may be unlikely in return for a settlement offer.

 

[jhern87]

I read another thread on here (then my computer had to reboot to update and now I can't seem to locate it) where a poster was explaining that having the attorney with the judgement, file a "vacatur of judgement" as a stipulation for a lump sum payment in full? Nobody here knows anything about this?

 

[justalayman]

I read another thread on here (then my computer had to reboot to update and now I can't seem to locate it) where a poster was explaining that having the attorney with the judgement, file a "vacatur of judgement" as a stipulation for a lump sum payment in full? Nobody here knows anything about this?

the judgment debtor cannot do anything regarding vacating the judgement that does not simply restart the process as dcatz exlained. If you want the judgement to be vacated and not get sued for this again, you need to go with the second process dcatz spoke to, which is what I was speaking of as well.

 

[jhern87]

the judgment debtor cannot do anything regarding vacating the judgement that does not simply restart the process as dcatz exlained. If you want the judgement to be vacated and not get sued for this again, you need to go with the second process dcatz spoke to, which is what I was speaking of as well.

That's what I was referring to. How do you go about accomplishing this?

 

[justalayman]

As I said, I am not familiar enough with the mechanics of the action to be able to give you much but I will say it is going to have to be based on an agreement between you and the judgment creditor. dcatz's statement here is as much as I know about it:

1) the parties first stipulating to vacate a judgment and (2) the plaintiff then dismissing the case so that it is not incumbent on the defendant to respond. This is a sufficient means to accomplish what the OP seems to desire, but it entails the creditor’s cooperation and additional expense, which may be unlikely in return for a settlement offer.

 

[jhern87]

As I said, I am not familiar enough with the mechanics of the action to be able to give you much but I will say it is going to have to be based on an agreement between you and the judgment creditor. dcatz's statement here is as much as I know about it:

When you say "judgement creditor" you're referring to the attorney that has sued me on behalf of the plaintiff, right? I would plan on having something signed by both of them.

 

[justalayman]

When you say "judgement creditor" you're referring to the attorney that has sued me on behalf of the plaintiff, right? I would plan on having something signed by both of them.

the judgment creditor is the entity that was the plaintiff on the suit that resulted in the judgment. It is not their legal representation (their attorney). That attorney has nothing to do with this unless the creditor is continuing to use them as their representative. Then you would have to deal with the creditor through their attorney.

 

[jhern87]

the judgment creditor is the entity that was the plaintiff on the suit that resulted in the judgment. It is not their legal representation (their attorney). That attorney has nothing to do with this unless the creditor is continuing to use them as their representative. Then you would have to deal with the creditor through their attorney.

Should I just type up a contract for this or is there an example one somewhere?

 

[justalayman]

Should I just type up a contract for this or is there an example one somewhere?

you might want to know if the creditor is even receptive to the idea before going to too much effort. Then, the creditor is the controlling entity here so they may want to write the contract.


I think you are getting ahead of yourself.

 

[jhern87]

you might want to know if the creditor is even receptive to the idea before going to too much effort. Then, the creditor is the controlling entity here so they may want to write the contract.


I think you are getting ahead of yourself.

Understood. I guess I'm more curious about the exact verbiage of what I'm seeking. Should I just call and ask if they'd be willing to vacate the judgement for the settlement amount + compensation for vacating it? I'm going to call here in a bit..

 

[dcatz]

OK, because I see apparently conflicting advice, even in the same forum in FA, allow me to expand on the earlier response, with the caveat that my state is not yours, OP, and every state is not the same. You should confirm the feasibility of a chosen course of action with local counsel.

A Stipulation is a document reflecting that you and the other party have reached agreement on a specific point without the need for a court ruling. In my state, a Stipulation requires an Order for the court to approve and sign. Once signed, the agreement of the Stipulation becomes the directive of the court.

A Stipulation to Vacate and Dismiss provides for an agreement as outlined above and making it an Order places the onus on the opposing party to effectuate it as indicated. It means the judgment is vacated (which would normally put you back to Square One, with an obligation to respond to the Complaint.) It also means that the Plaintiff agrees to dismiss the Complaint promptly thereafter. This is better than Square One because, procedurally, there is nothing left to which you must respond. The litigation never happened and you’re a free man. All related records are in accord.

Because the agreement, once it is signed by the Court, becomes an order of the Court, prudence dictates that it provide that the dismissal which follows be a dismissal with prejudice.

That is the type of agreement for which you must negotiate and, candidly, since the judgment creditor is not obliged to give it, your efforts probably won’t be seen as “leveraged”. The judgment creditor must do additional work on your claim and incur additional expense to file the Stip. Prior efforts to get payment without the litigation costs tend to be viewed as the equivalent of smacking your head with a rock because it feels good when you quit.

Most creditors will look to at least be made whole before agreeing to a discount . Good luck if it’s permitted and you try.

 

[jhern87]

OK, because I see apparently conflicting advice, even in the same forum in FA, allow me to expand on the earlier response, with the caveat that my state is not yours, OP, and every state is not the same. You should confirm the feasibility of a chosen course of action with local counsel.

A Stipulation is a document reflecting that you and the other party have reached agreement on a specific point without the need for a court ruling. In my state, a Stipulation requires an Order for the court to approve and sign. Once signed, the agreement of the Stipulation becomes the directive of the court.

A Stipulation to Vacate and Dismiss provides for an agreement as outlined above and making it an Order places the onus on the opposing party to effectuate it as indicated. It means the judgment is vacated (which would normally put you back to Square One, with an obligation to respond to the Complaint.) It also means that the Plaintiff agrees to dismiss the Complaint promptly thereafter. This is better than Square One because, procedurally, there is nothing left to which you must respond. The litigation never happened and you’re a free man. All related records are in accord.

Because the agreement, once it is signed by the Court, becomes an order of the Court, prudence dictates that it provide that the dismissal which follows be a dismissal with prejudice.

That is the type of agreement for which you must negotiate and, candidly, since the judgment creditor is not obliged to give it, your efforts probably won’t be seen as “leveraged”. The judgment creditor must do additional work on your claim and incur additional expense to file the Stip. Prior efforts to get payment without the litigation costs tend to be viewed as the equivalent of smacking your head with a rock because it feels good when you quit.

Most creditors will look to at least be made whole before agreeing to a discount . Good luck if it’s permitted and you try.

Well I've spoken to an attorney that believes that I can file a motion to get this vacated. My plan was to contact them and let them know that I plan on filing a motion but would be willing to take care of it before then, if they would be willing to sign a stipulation to vacate and dismiss.

For the record, I contacted Midland Funding and they wouldn't even speak with me.. They're referring me to their attorney.