Motion to Set Aside / Vacate / Undo Judgment
A motion known by many names:
A motion to vacate the judgment
A motion to set aside the judgment
A motion to undo the judgment
A motion to get rid of the judgment
We often get calls that go something like this: Hi, I just had a guy come to my door that gave me a document that says order to show cause (or motion for supplemental proceedings), and I guess I was supposed to answer something, but I didn’t know about it (or I forgot about it), and now I have a judgment (or a decree) against me. Can you guys help me?
The answer is often yes, but you must move quickly. Utah has a rule of civil procedure, which lawyers call “Rule 60 B.” It’s the rule that’s used to undo a judgment. It’s official title is “Rule 60. Relief from judgment or order.”
If you are the victim of a simple clerical mistakes or error, the court may correct it once it is brought to the court’s attention. The court may do so if you ask it to do so (sometimes by just calling the clerk and pointing out the error (like an obvious math error), or on its own, with or without notice. But, if the case is on appeal, the case is NOT with the court that entered the order, so the mistake may be corrected by getting permission from the appellate court.
The most common reason for trying to undo a judgment, order, or decree is because of a mistake (for example, you though the court date was for March 17th, but it was for February 17th); inadvertence (this is just like a mistake—you answered the complaint, put it in an envelope, but forgot to put postage on it when you mailed it); excusable neglect (you thought you had 30 days to answer, but you only had 20, but the reasonable was understandable, and that type of goof up happens all the time to even the nicest of people); newly discovered evidence (after the order/judgment was entered you, happened to find a witness to your case that you could not track down before the trial); and, fraud (you have proof the other side lied to the court), etc. And if none of those fit, you can tell the judge you have another really good reason “that justified relief” (getting the order undone).
Timing is very important. In other words, once you learn of the error, you must ACT ON IT ASAP (and honestly, it’s best to use an attorney). Usually, motion to undo an order must be filed within “a reasonable time,” and often that means not more than 90 days after entry of the judgment or order or, if there is no judgment or order, from the date of the proceeding. Remember, until an order is signed by the judge, things are still sort of up in the air. Further, until the order/judgment/decree is undone, you must abide its terms.
So, if there is an order saying you cannot speak to your ex-live-in lover and you do (before the order gets undone), you will get hit with a class A misdemeanor, even if you get the order undone (set aside/vacated) an hour later. In other words, your motion “does not affect the finality of a judgment or suspend its operation.”
Sometimes, years may pass before a person gets proof that the court was defrauded. If that happens, the rule allows the court “to entertain an independent action to relieve [you] from a [the] judgment, order or proceeding. If that happens, the procedure for obtaining the relief (getting the judgment undone) shall be by motion as prescribed (mandated) in these rules or by an independent action.
Again, if you are in this pickle, call Greg Smith and Associates.
Get competent legal advice. Call us at 801-651-1512.