When Default Judgments Get Vacated

August 13, 2023


Many judgment debtors do not care about default judgments. If they cared, they would have showed up at court. When someone recovers a judgment by having a sheriff take money or assets from the judgment debtor, the debtor may suddenly care very much, and start a procedure to vacate the judgment because “they were not served”.

There are quotes above, because many judgment debtors that claim they were not served; even when they were properly served. Usually, if they really were not served, there would have been no judgment, because proof of service is the first thing the judge will check for.

The many ways people can be served lawsuit papers, range from personal service by a Sheriff, to sub-service by a process server, to (worst of all) service by publication in a newspaper. Service by publication in a newspaper in 1940 made sense. Service by an old-fashioned newspaper today makes very little sense.

The legal basis for a motion to vacate a judgment usually comes down to the proof of service. When a debtor tries to vacate (also called expunge, or set-aside) a judgment, they usually claim they did not know about the lawsuit.

When the debtor tries to vacate the judgment, 99.99% of the time, it is a default judgment. Very rarely, a debtor will show up in court, then years later claim reasons such as they were on some kind of drug, or had a mental problem, or they were under duress, and they now want the judgment overturned.

Courts want both sides to “have their day” in court, so when there are reasonably strong doubts about the proof of service, judges often grant the debtor’s request. One reason judges grant requests to vacate judgments is that it provides an opportunity for a new trial or hearing, so that the plaintiff must try and again win their judgment.

When the proof of service is rock solid, and it is personally served by a sheriff or a (still active) registered process server, it is very difficult for a debtor to win a motion to vacate the judgment (either a default or non-default judgment).

If the proof of the debtor’s wrongdoing is strong, a successful motion to vacate the judgment is just a temporary delay, the new court hearing or trial will likely produce the same result, a renewed new judgment against the debtor. In this case, the new judgment (however related judgment) will result and the debtor cannot try to vacate the judgment again. (But the debtor may file for bankruptcy protection at any time.)

The basis of law to overturn judgments is often called “grounds for relief”. These reasons can include:

1) Mistake. Ignorance of the law is usually not an excuse, but once in a while, the debtors try to claim a mistaken understanding of the facts. In California, this is described in CCP 473.

2) Inadvertence. Merely not paying attention is usually not an excuse, but sometimes the debtor will try to use excuses like a relative died, they were moving, they were on drugs, etc. In California this is described in CCP 473 (b).

3) Surprise. A debtor may claim they were framed, or it was not their fault. In California, this is described in CCP 473 (b).

4) Excusable Neglect. A debtor claims they could not pay a lawyer, were sick, unavailable, etc. In California, this is described in CCP 473 (b).

5) Not given actual notice of the lawsuit (“I was never served”). This is the most common reason. The court may on its own, or upon a motion of either party, set aside and void any judgment for several reasons, including:

A) The first court did not have the jurisdiction (the geographic and legal area over which its authority extends) to decide the case.

B) There was a fraud on the court.

C) There was improper or fraudulent proof of service, resulting in a lack of personal jurisdiction over the defendant.

There are other ways that a default judgment may become void. In California, this is described in CCP 473 (d).

If you are recovering a judgment that you purchased outright or on a future-pay basis, when a debtor files a motion to vacate, the judgment might be lost. To defend the judgment, you might even need to contact the Original Judgment Creditor to help you find the process server that served the judgment debtor.

Some Judgment Recovery specialists return judgments to the Original Judgment Creditor when a debtor files a motion to vacate the judgment. See our Vacating A Judgment article.

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