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Motion to Vacate Judgement question

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Jctm2011

Member
This is a case from Indiana that is ongoing. I recently filed a motion to vacate judgment against me in a civil matter regarding a debt purchased by a junk debt buyer. The order signed by the judge says the motion to vacate was granted and was set for hearing. The hearing was a couple of months ago and a bench trial is set for next month. The judge ordered the Plaintiff to produce proof of debt. The Plaintiff submitted several documents and long story short nothing that named myself in the debt. The debt isn't even mine. I have since filed a motion to dismiss the complaint and the judge ordered the Plaintiff to respond in 30 days.

Here is were my question comes in. The Plaintiff now claims my motion is procedurally improper as judgement has been entered in this cause of action. The Plaintiff is requesting that the motion be denied. I was under the impression like in this case that if a motion to vacate judgment was granted then wouldn't that mean the the judgment was vacated? Since the case has been set for a bench trial then how can you have a trial if the judgement has not been vacated? The Plaintiff has an attorney btw. Am i missing something here?
 


adjusterjack

Senior Member
Here's what you are missing:

a bench trial is set for next month
Your motion to dismiss was improper. The bench trial is your opportunity to refute the plaintiff's documents.

The judge isn't likely to allow a dismissal since he has already scheduled the bench trial.

I was under the impression like in this case that if a motion to vacate judgment was granted then wouldn't that mean the the judgment was vacated?
It was. Setting aside a judgment gives the parties a do-over.

Here's something else that you are missing:

The Plaintiff has an attorney
And you have no clue as to what is happening.

Going up against an attorney without one of your own is like bringing a rubber knife to a gunfight. You'll be the one on the ground bleeding.


How much were you sued for?
What kind of debt?
On what grounds did you get the judgment set aside?
 

Jctm2011

Member
Here's what you are missing:



Your motion to dismiss was improper. The bench trial is your opportunity to refute the plaintiff's documents.

The judge isn't likely to allow a dismissal since he has already scheduled the bench trial.

Why have a bench trial if the judgement against me is still in force? I thought if a motion was granted then it would mean it had taken place.


It was. Setting aside a judgment gives the parties a do-over.

Here's something else that you are missing:



And you have no clue as to what is happening.

Going up against an attorney without one of your own is like bringing a rubber knife to a gunfight. You'll be the one on the ground bleeding.

I wouldn't say I have no clue what is happening as I have done a great job defending this case and I am sure I will win. When I filed my motion and submitted numerous exhibits and asked several questions the Plaintiff didnt answer.

How much were you sued for? The debt is only for $1, 300 which I why I did not get an attorney.
What kind of debt? It was a credit card dent that is not even mine.
On what grounds did you get the judgment set aside? The motion to vacate judgement was because I was never served. They used numerous addresses that were not even mine and I submitted a meritorious defense.

I have zero problem with going to trial as I know I will win. I just think its a huge waste the courts time since they can't even prove the debt is theirs with no chain of title or custody and nothing they have even names me as being debtor, hence why I motioned for dismissal since I submitted the documentation and questions to show the debt isn't even mine. Why would the judge state the the Plaintiff has 30 days to respond to my motion and the the judge also state he would take it under advisement?

I know I am not an attorney but a lot of this is just common sense. Why have a trial if the motion to vacate was not granted?

I guess my real question here is of the judge says my motion to vacate judgment is granted then is the judgment vacated?
 

Jctm2011

Member
It is vacated right up to the moment it gets reinstated and the next hearing.
That was my understanding on it as well. The case has been set for bench trial and requests for discovery have already been made and the my motion to dismiss is under advisement. It just seems to me that is the case has not been vacated then why are we proceeding on like it has? Not sure why the Plaintiffs attorney would even raise the issue as it seemed very clear to me it was vacated. Maybe a stall tactic or just trying to confuse me.. Oh well
 

PayrollHRGuy

Senior Member
You are preceding on like this because you have a bench trial scheduled. You don't mention any action by the other side that sounds like they are acting like the judgment has not been vacated.
 

Jctm2011

Member
You are preceding on like this because you have a bench trial scheduled. You don't mention any action by the other side that sounds like they are acting like the judgment has not been vacated.
The judge has never denied my motion to vacate. The other side of course raised questions and objected to the motion. But again the judge said my motion to vacate was granted. When the judge uses that term "granted" for a motion doesn't that mean just that... It was granted? The bench trial seems to be for the fact that the judgment was vacated which again why the discovery was requested from the other side? It seems like this would be a simple yes or no answer if this was actually vacated. Everything wake I have read about motions being granted indicates to me that when a motion is granted then that is what it has become. Like motion for summary judgment being granted. That would mean that judgememt was made on that case.

Why have a bench trial if the judgement had NOT been vacated? Why have discovery if the case was not reopened? Why would the judge take my motion for dismissal under advisement if the judgement had not already been vacated? His order saidy motion to vacate was granted. That's my question is it vacated or not. If not why all the discovery and bench trial etc.?
 

PayrollHRGuy

Senior Member
The judge has never denied my motion to vacate. The other side of course raised questions and objected to the motion. But again the judge said my motion to vacate was granted. When the judge uses that term "granted" for a motion doesn't that mean just that... It was granted? The bench trial seems to be for the fact that the judgment was vacated which again why the discovery was requested from the other side? It seems like this would be a simple yes or no answer if this was actually vacated. Everything wake I have read about motions being granted indicates to me that when a motion is granted then that is what it has become. Like motion for summary judgment being granted. That would mean that judgememt was made on that case.

Why have a bench trial if the judgement had NOT been vacated? Why have discovery if the case was not reopened? Why would the judge take my motion for dismissal under advisement if the judgement had not already been vacated? His order saidy motion to vacate was granted. That's my question is it vacated or not. If not why all the discovery and bench trial etc.?
In one sentence please state what action you think the other side is in counter to or in violation of the motion to vacate?
 

Jctm2011

Member
Just what I posted earlier... The Plaintiffs attorney stated my motion to dismiss should be denied as it is procedurally improper since the judgement was never vacated. The earlier order said my motion to vacate judgment was granted.
 

adjusterjack

Senior Member
Why have a bench trial if the judgement had NOT been vacated? Why have discovery if the case was not reopened? Why would the judge take my motion for dismissal under advisement if the judgement had not already been vacated? His order saidy motion to vacate was granted. That's my question is it vacated or not. If not why all the discovery and bench trial etc.?
You're just not getting it. The setting aside of the judgment automatically "reopened" the case.

Read Rule 60, and pay attention to

(D) Hearing and relief granted.
In passing upon a motion allowed by subdivision (B) of this rule the court shall hear any pertinent evidence, allow new parties to be served with summons, allow discovery, grant relief as provided under Rule 59 or otherwise as permitted by subdivision (B) of this rule.
(Emphasis mine.)

https://www.in.gov/judiciary/rules/trial_proc/#_Toc502746831

That's what is happening. Your motion to dismiss was improper. The plaintiff's response was proper though poorly worded.

You're having a bench trial. Period.

Deal with that and get yourself a lawyer.
 

Jctm2011

Member
You're just not getting it. The setting aside of the judgment automatically "reopened" the case.

Read Rule 60, and pay attention to



(Emphasis mine.)

https://www.in.gov/judiciary/rules/trial_proc/#_Toc502746831

That's what is happening. Your motion to dismiss was improper. The plaintiff's response was proper though poorly worded.

You're having a bench trial. Period.

Deal with that and get yourself a lawyer.
I AM getting as that was my question in the first place. Was the judgement set aside or vacated? I have ZERO problem with going to trial. I think YOU don't get it. The Plaintiff claims my motion to vacate was NOT set aside. Yet the judge says it was. All I was asking here was a simple yes or not answer was the judgment vacated or not? I KNOW it wasn't dismissed hence the bench trial. Speakinf frankly the attorneys on here ha people come on here asking for advise and your reply is get yourself an attorney. My case is only for $1, 300 and before you say a smart ass reply like pay your bills the debt is not even mine. Its in small claims court the amount I would spend on an attorney I may as well pay for the judgment. When you say "deal with that"... That is exactly what I have been doing dumbass! I have all the evidence I need to prove this dent isn't even mine, the Plaintiff lacks standing in the case, is tell you guys only on hearsay, and is even violating a court order to dismiss the case themselves... You DEAL with that! Thanks for the advise and your smart ass comments ta simple yes or no answer. Geez
 

Litigator22

Active Member
You are missing the entire point in contention as your motion to dismiss is not improper due to the fact that the default judgment has been vacated. The motion is improper because the defenses available for presentation under a bare 12(b) motion to dismiss do not include a denial of the merits of the plaintiff's alleged cause of action! *

In other words, unless the motion is treated as one for summary judgment **, it cannot be used to address substantive issues.

In sum what seem clear is that you have mistakenly assumed that a motion to dismiss is available to address the question of whether or not the plaintiff's claim for relief as stated in its pleadings is applicable to you. And that is a factual issue that cannot be raised or adjudicated by such a simple motion to dismiss. It is one requiring a plenary hearing (trial) or a Rule 56 proceeding.

_______________________

[*] Specifically the defenses that can be raised by such a Rule 12(b) motion are:
(1) Lack of jurisdiction over the subject matter,
(2) Lack of jurisdiction over the person,
(3) Incorrect venue under (4) Insufficiency of process;
(5) Insufficiency of service of process;
(6) Failure to state a claim upon which relief can be granted . . .
(7) Failure to join a party needed for just adjudication . . .
(8) The same action (is) pending in another state court of this state.



[**] "If, on a motion, asserting the defense number (6), to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. In such case, all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56."
 

Jctm2011

Member
Ok... I would understand that... But the attorney for the Plaintiff said that motion to dismiss would be improper because the judgment was never vacated hence why I aske the question in the first place. The judge said it was vacated but the Plaintiff claims it was not and used that as his basis to request the motion to dismiss be denied. He asserted no other reason to deny it. Like I said I have zero problem going to trial over this and have already had a hearing once. It seems to be a waste of everyone time to go to trial so my next move should be to file for a motionf for summary judgment against the Plaintiff since he clearly lacks any merit to sue in this case. Sorry I blew up earlier
 

PayrollHRGuy

Senior Member
I really don't think you understand what the attorney for the Plaintiff said. You have a hearing. This shows that you motion to dismiss was not granted.
 

Jctm2011

Member
Yes I know the motion to dismiss was not granted. When I motioned for that the Plaintiff based the request for their denial on their assumption that the motion VACATE was denied which it was in fact granted. Apparently they have missed that. I am fully aware that the trial has been proceeding and have been preparing for it. Thank you for your help
 

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