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Motion To Vacate Hearing

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Iconoclast

Junior Member
Oregon : Multnomah County : 4th Judicial District

Hello all,

I was curious if anyone knows or knows where to find information regarding filing a motion to vacate a hearing.

This is in a small claims court and is in regards to a motion I filed to dismiss due to lack of standing and jurisdiction.

There is a hearing set to "hear" my motion in less then two weeks but it's [the hearing is] unnecessary since a judge can make a determination without a hearing.

Any ideas on filing a motion to vacate the hearing as unnecessary to a determination?

Thanks in advance
 


dcatz

Senior Member
Just inform the court that you're withdrawing your motion. You can probably do it by a phone call to the clerk.

Did you serve the other side with Notice of the motion? If so, you'll have to inform them that they won't have to appear. In Small Claims, the court may have a simple form to use or even send notice for you (but the latter is a little less likely).

Whatever is required, it won't be involved. It's just one less thing for the court to do that day.
 

seniorjudge

Senior Member
Are you saying that you are the defendant in a small claims case?

Are you also saying that there has been no judgment yet but that you filed a "motion to vacate hearing" to stop an upcoming trial?

If you are saying that the plaintiff lacks standing and that the court lacks jurisdiction, then these are defenses you need to present at trial.

If you get overruled on one or both and the court enters a judgment against you, then the proper remedy is for you to appeal.
 

Iconoclast

Junior Member
Thanks for the replies.

Yes I am the alleged defendant and I've already filed a motion to dismiss for lack of standing and jurisdiction, that's what the hearing is for.

I am not trying to stop anything, I just don't want to have to waste everyone's time (including my own) going to a hearing on a the motion to dismiss that I've already filed when it [the hearing] is unnecessary for a determination.

My understanding that here in "Oregon" there is no trial unless one is requested, which neither "party" has.

I just want the judge to rule on the motion to dismiss without going to the hearing.
 

seniorjudge

Senior Member
If the judge says you must argue the motion to dismiss, then you must argue the motion to dismiss.


Period.

End of story.

Even if.
 

Iconoclast

Junior Member
If the judge says you must argue the motion to dismiss, then you must argue the motion to dismiss. Period. End of story. Even if.
That's fine, but the judge hasn't stated anything... and I want to a file a motion to vacate the hearing so he can just make a ruling on the motion to dismiss.

If he says no to the motion to vacate then he says no, but I just want to know how a motion to vacate a hearing is typically done.
 

Iconoclast

Junior Member
I was under the impression that a motion to vacate is simply for a judge to set aside or annual an order etc.

Like when a motion to vacate judgment is filed.

Oh well thanks, hope you have a great rest of your week!
 

seniorjudge

Senior Member
That's fine, but the judge hasn't stated anything... and I want to a file a motion to vacate the hearing so he can just make a ruling on the motion to dismiss.

If he says no to the motion to vacate then he says no, but I just want to know how a motion to vacate a hearing is typically done.
If the judge has not set a hearing, then how can you file a "motion to vacate hearing"?

I think you have a conceptual block.

The judge must rule on the motion to dismiss (whether or not there is a hearing).

If he rules in your favor, the case will be dismissed without prejudice, which means that it can be refiled.

If he rules against you, then there will be a trial.

Thus, there is no such thing as a "motion to vacate hearing".
 

Iconoclast

Junior Member
Perhaps I didn't make myself clear enough previously.

If the judge has not set a hearing, then how can you file a "motion to vacate hearing"?
The hearing is ONLY for the motion to dismiss that I filed previously in regards to the initial claims made against me. There has been no trial or hearing to date on the mater of the claim directly.

I think you have a conceptual block.
If I do please point it out to me so I can understand and correct that block.

The judge must rule on the motion to dismiss (whether or not there is a hearing).
Yes this is why I want him to rule without the hearing, as it stands he won't make any determination until the hearing, which is unnecessary in this case. It's a waste of "precious judicial resources". Even though they (the county court) basically has an entire docket set aside to hear motions.

If he rules in your favor, the case will be dismissed without prejudice, which means that it can be refiled.
So someone can continually file the same claim against someone else in perpetuity? Wouldn't the judge if ruling in favor of the motion to dismiss for lack of standing and jurisdiction dismiss with prejudice so that it couldn't be filed indefinitely?

If he rules against you, then there will be a trial.
That does make sense to me, however as stated on the paperwork and websites for small claims courts matters under $1,500..here, there is no trial unless one is specifically requested (and paid for) by the defendent or plaintiff. Otherwise it's all "informal" and done via hearings. If a hearing is the same as a trial then forgive my misunderstanding.

But if that were so why in their paperwork would they make a distinction?

Thus, there is no such thing as a "motion to vacate hearing".
I'm not entirely certain I follow you on that point however because a motion to vacate is a motion to void an order basically... the hearing is by order which is to hear the motion to dismiss.

Therefore shouldn't it stand to reason that the hearing order can be vacated?

I do appreciate your input and apologize if my laymen brain just can't properly grasp this.
 

seniorjudge

Senior Member
If the judge says you must argue the motion to dismiss, then you must argue the motion to dismiss.


Period.

End of story.

Even if.
Now that you have made clear that there is actually a hearing set for your motion to dismiss, then this answer is correct.

File anything you want; the judge will either overrule it or grant it.
 

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