How do I do a Vacate on a Judgement

You have to have a good reason to have a judgment vacated. The easiest ways are 1) if you were never served; 2) you can get the person who filed for the judgment to sign the motion to vacate.

For either of these reasons, there is no time limit, at least not where I live.

If you don't have a good reason, get a copy of the court file and get a good lawyer to look at it and see if he/she can find a reason.

Often there are big mistakes and it is possible to have them vacated.

 

I am thinking about this for a medical collection that was turned over to an attorney. I am in the state of Ohio so the SOl for this is like 21 years with interest, so I have to do something. I was never served, so I believe that I can get it vacated. Here's the problem, the judgement was for $1200 and I am wondering how to handle this. Can I bargain for a settlement or can I use validation to try and get out of the debt? It is about 4 1/2 years old.

 

Demanding validation isn't likely to get you anywhere at this stage of the game. A little late for that unless you do it though motion to vacate void judgment. I've been doinga lot of research on the subject over a very long period of time and this is just one set of notes I have on the matter. In another post a few days ago I started a thread also dealing with the 22 reasons why a judgment might be void. There are about 10 pages in that set of notes and I don't have them all typed up yet. But this other set of notes is also very helpful in understanding why judgments may be void. So let this one blow your mind while I work on the other one which won't be all that fast in coming. Probably in some other thread.

SUBJECT-MATTER JURISDICTION
In Courts Proceeding Under Limited Jurisdiction​

Subject-matter jurisdiction is the authority of the court to hear and make a determination in a court action. In Interest of M.V., 288 Ill.App.3d 300, 681 N.E.2d 532 (1st Dist. 1997). Without subject-matter jurisdiction, all of the orders and judgments issued by a judge are void under law, and are of no legal force or effect. In Interest of M.V., 288 Ill.App.3d 300, 681 N.E.2d 532 (1st Dist. 1997) ("Every act of the court beyond that power is void").

Under the current 1970 Illinois Constitution, all courts have general jurisdiction; however in any proceeding based on an Illinois statute (whether divorce, adoption, paternity, juvenile, probate, traffic, Illinois Appellate Courts, Federal Courts, Bankruptcy Court, etc., i.e., in any statutory proceeding), the court immediately loses its general jurisdiction powers and becomes a court governed by the rules of limited jurisdiction. In Interest of M.V., 288 Ill.App.3d 300, 681 N.E.2d 532 (1st Dist. 1997) ("Where a court's power to act is controlled by statute, the court is governed by the rules of limited jurisdiction, and courts exercising jurisdiction over such matters must proceed within the strictures of the statute."); In re Marriage of Milliken, 199 Ill.App.3d 813, 557 N.E.2d 591 (1st Dist. 1990) ("The jurisdiction of a court in a dissolution proceeding is limited to that conferred by statute."); Vulcan Materials Co. v. Bee Const. Co., Inc., 101 Ill.App.3d 30, 40, 427 N.E.2d 797 (1st Dist. 1981) ("Though a court be one of general jurisdiction, when its power to act on a particular matter is controlled by statute, the court is governed by the rules of limited jurisdiction."); In re M.M., 156 Ill.2d 53, 619 N.E.2d 702 (1993) ("The legislature may define the `justiciable matter' in such a way as to preclude or limit the authority of the circuit court.

[Citations] When a court's power to act is controlled by statute, the court is governed by the rules of limited jurisdiction

 

[Citations], and courts exercising jurisdiction over such matters must proceed within the strictures of the statute."); Brown v. VanKeuren, 340 Ill. 118, 122 (1930) ("Whatever the rank of the court exercising a special statutory jurisdiction, it is governed by the same rules as courts of limited jurisdiction."); Midland Coal Co. v. Knox County, 268 Ill.App.3d 485, 644 N.E.2d 796 (4th Dist. 1994) ("Special statutory jurisdiction is limited to the language of the act conferring it, and the court has no powers from any other source. ... [T]he authority of the court to make any order must be found in the statute. Levy v. Industrial Comm'n (1931), 346 Ill. 49, 51, 178 N.E. 370, 371."); Skilling v. Skilling, 104 Ill.App.3d 213, 482 N.E.2d 881 (1st Dist. 1982) ("the legislature prescribes that a court's jurisdiction to hear and determine controversies involving a statutory right is limited in that certain facts must exist before a court can act in any particular case."); Keal v. Rhydderick, 317 Ill. 231 (1925) ("court exercising a special statutory jurisdiction, it is governed by the same rules as courts of limited jurisdiction."); In re Chiara C., 279 Ill.App.3d 761, 765 (1996)

("Thus, in cases where `a court's power to act is controlled by statute, the court is governed by the rules of limited jurisdiction [citations], and the courts exercising jurisdiction over such matters must proceed within the strictures of the statute".); Johnson v. Theis, 282 Ill.App.3d 966, 669 N.E.2d 590 (2nd Dist. 1996) ("A court in the exercise of special statutory jurisdiction is limited in its power by the language of the act conferring such jurisdiction."); In Interest of Rami M., 285 Ill.App.3d 267, 673 N.E.2d 358 (1st Dist. 1996)

("In cases where the court is conferred power to adjudicate by virtue of a statute, the court's jurisdiction is strictly limited by the statute.").
It is clear and well-established law in Illinois that a divorce proceeding occurs only in a court of limited jurisdiction. The writer can find no cases that claim that a divorce proceeding, or any statutory proceeding, takes place in courts of general jurisdiction.
NO PRESUMPTION OF JURISDICTION
While in a court of general jurisdiction, there is a presumption that the judge has subject-matter jurisdiction, such is not the case in courts of limited jurisdiction. In all courts of limited jurisdiction, there is no presumption of subject-matter jurisdiction.
In all courts of limited jurisdiction, the record of the case must support any claim of subject-matter jurisdiction. If subject-matter jurisdiction does not appear from the record of the case, the presiding judge is acting without subject-matter jurisdiction and his/her orders are void, of no legal force or effect. State Bank of Lake Zurich v. Thill, 113 Ill.2d 294, 497 N.E.2d 1156 (1986) ("In determining whether a lack of jurisdiction is apparent from the record, we must look to the whole record, which includes the pleadings, the return on the process, the verdict of the jury, and the judgment or decree of the court."); Wabash Area Development, Inc. v. Ind. Com., 88 Ill.2d 392 (1981) ("that compliance with the statutory requirements for the issuance of the writ must affirmatively appear in the record."); I.C.R.R. Co. v. Hasenwinkle, 232 Ill. 224, 227 (1908) ("The law presumes nothing in favor of the jurisdiction of a court exercising special statutory powers, such as those given by statute under which the court acted, (Chicago and Northwestern Railway Co. v. Galt, 133 Ill. 657), and the record must affirmatively show the facts necessary to give jurisdiction. The record must show that the statute was complied with"); In re Marriage of Stefiniw, 253 Ill.App.3d 196, 625 N.E.2d 358 (1st Dist. 1993) ("A judgment is characterized as void and may be collaterally attacked at any time where the record itself furnished the facts which establish that the court acted without jurisdiction.");People v. Byrnes, 34 Ill.App.3d 983, 341 N.E.2d 729 (2nd Dist. 1975) ("Whereas a court of general jurisdiction is presumed to have jurisdiction to render any judgment in a case arising under the common law, there is no such presumption of jurisdiction in cases arising under a specific statutory grant of authority. In the later cases the record must reveal the facts which authorize the court to act."); Zook v. Spannaus, 34 Ill.2d 612, 217 N.E.2d 789 (1966) ("In the absence of such findings in the record and in the absence of any evidence in the record to support such findings the court was without jurisdiction in this special statutory proceeding to enter an order authorizing the guardian to consent to adoption.");Fico v. Industrial Com., 353 Ill. 74 (1933) ("Where the court is exercising a special statutory jurisdiction the record must show upon its face that the case is one where the court has authority to act.").
The judge has a duty to continually inspect the record of the case, and if subject-matter jurisdiction does not appear at any time from the record of the case, then he has the duty to dismiss the case as lacking subject-matter jurisdiction. Should a judge act in any case in which he does not have subject-matter jurisdiction, he is acting unlawfully,U.S. v. Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404, 5 L.Ed 257 (1821), and without any judicial authority.

WHEN A PARTY DENIES JURISDICTION
In a court of limited jurisdiction, whenever a party denies that the court has subject-matter jurisdiction, it becomes the duty and the burden of the party claiming that the court has subject-matter jurisdiction to provide evidence from the record of the case that the court holds subject-matter jurisdiction. Bindell v. City of Harvey, 212 Ill.App.3d 1042, 571 N.E.2d 1017 (1st Dist. 1991) ("the burden of proving jurisdiction rests upon the party asserting it."); Loos v. American Energy Savers, Inc., 168 Ill.App.3d 558, 522 N.E.2d 841 (1988) ("Where jurisdiction is contested, the burden of establishing it rests upon the plaintiff.").
Until the plaintiff/petitioner submits uncontroverted evidence of subject-matter jurisdiction to the court that the court has subject-matter jurisdiction, the court is proceeding without subject-matter jurisdiction. Should the plaintiff/petitioner not provide uncontroverted evidence of subject-matter jurisdiction, all orders or judgments issued by the judge are void ab initio. A judge should not proceed in any action in which the judge does not have subject-matter jurisdiction, since he/she has no lawful authority to act.
The law places the duty and the burden upon the plaintiff/petitioner. Should the court attempt to place the burden upon the defendant/respondent, the court has acted against the law, violates the defendant/respondent's due process rights, and the judge under court decisions has immediately lost subject-matter jurisdiction.

 

COURT MUST PROCEED ACCORDING TO LAW OR STATUTE
In a court of limited jurisdiction, the court must proceed exactly according to the law or statute under which it operates. Flake v. Pretzel, 381 Ill. 498, 46 N.E.2d 375 (1943) ("the actions, being statutory proceedings, ... were void for want of power to make them.") ("The judgments were based on orders which were void because the court exceeded its jurisdiction in entering them. Where a court, after acquiring jurisdiction of a subject matter, as here, transcends the limits of the jurisdiction conferred, its judgment is void."); Armstrong v. Obucino, 300 Ill. 140, 143, 133 N.E. 58 (1921) ("The doctrine that where a court has once acquired jurisdiction it has a right to decide every question which arises in the cause, and its judgment or decree, however erroneous, cannot be collaterally assailed, is only correct when the court proceeds according to the established modes governing the class to which the case belongs and does not transcend in the extent and character of its judgment or decree the law or statute which is applicable to it."
Whenever a judge does not exactly comply with the statute, he/she has lost subject-matter jurisdiction and all orders or judgments issued without subject-matter jurisdiction are void, of no legal force or effect.
IN COURTS OF LIMITED JURISDICTION, ALL ORDERS MUST CONTAIN THE SPECIFIC
FINDINGS THAT THE COURT HAS JURISDICTION
All orders or judgments issued by a judge in a court of limited jurisdiction must contain the findings of the court showing that the court has subject-matter jurisdiction, not allegations that the court has jurisdiction.In re Jennings, 68 Ill.2d 125, 368 N.E.2d 864 (1977) ("in a special statutory proceeding an order must contain the jurisdictional findings prescribed by statute."); Zook v. Spannaus, 34 Ill.2d 612, 217 N.E.2d 789 (1966).
Our Supreme Court has ruled that "Because a court does not acquire jurisdiction by a mere recital contrary to what is shown in the record", the record of the case is the determinating factor as to whether a court has jurisdiction. State Bank of Lake Zurich v. Thill, 113 Ill.2d 294, 497 N.E.2d 1156 (1986).

A judge's allegation that he has subject-matter jurisdiction is only an allegation (Lombard v. Elmore, 134 Ill.App.3d 898, 480 N.E.2d 1329 (1st Dist. 1985); Hill v. Daily, 28 Ill.App.3d 202, 204, 328 N.E.2d 142 (1975)); inspection of the record of the case has been ruled to be the controlling factor. If the record of the case does not support subject-matter jurisdiction, then the judge has acted without subject-matter jurisdiction. The People v. Brewer, 328 Ill. 472, 483 (1928) ("If it could not legally hear the matter upon the jurisdictional paper presented, its finding that it had the power can add nothing to its authority, - it had no authority to make that finding.").

Without the specific findings of jurisdiction by the court in an order or judgment, the order or judgment does not comply with the law and is void.
NO STATUTE OF LIMITATIONS
TO CHALLENGE A VOID ORDER
Since a void order has no legal force or effect there can be no time limit within which to challenge the order or judgment. Further since the order has no legal force or effect, it can be repeatedly challenged, since no judge has the lawful authority to make a void order valid.Bates v. Board of Education, Allendale Community Consolidated School District No. 17, 136 Ill.2d 260, 267 (1990) (a court "cannot confer jurisdiction where none existed and cannot make a void proceeding valid."); People ex rel. Gowdy v. Baltimore & Ohio R.R. Co., 385 Ill. 86, 92, 52 N.E.2d 255 (1943).

NO RESTRICTION ON VENUE TO VACATE A VOID ORDER
It is clear and well established law that a void order can be challenged in any court. Old Wayne Mut. L. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907) ("jurisdiction of any court exercising authority over a subject `may be inquired into in every other court when the proceedings in the former are relied upon and brought before the latter by a party claiming the benefit of such proceedings,' and the rule prevails whether `the decree or judgment has been given, in a court of admiralty, chancery, ecclesiastical court, or court of common law, or whether the point ruled has arisen under the laws of nations, the practice in chancery, or the municipal laws of states.'"); In re Marriage of Macino, 236 Ill.App.3d 886 (2nd Dist. 1992) ("if the order is void, it may be attacked at any time in any proceeding, "); Evans v. Corporate Services, 207 Ill.App.3d 297, 565 N.E.2d 724 (2nd Dist. 1990) ("a void judgment, order or decree may be attacked at any time or in any court, either directly or collaterally"); Oak Park Nat. Bank v. Peoples Gas Light & Coke Co., 46 Ill.App.2d 385, 197 N.E.2d 73, 77 (1st Dist. 1964) ("that judgment is void and may be attacked at any time in the same or any other court, by the parties or by any other person who is affected thereby."). [Emphasis added].

NO RESTRICTION ON TIME TO VACATE A VOID ORDER
It is also clear and well established law that a void order can be challenged in any court at any time. People v. Wade, 116 Ill.2d 1, 506 N.E.2d 954 (1987) ("A void judgment may be attacked at any time, either directly or collaterally."); In re Marriage of Macino, 236 Ill.App.3d 886 (2nd Dist. 1992) ("if the order is void, it may be attacked at any time in any proceeding, "; Evans v. Corporate Services, 207 Ill.App.3d 297, 565 N.E.2d 724 (2nd Dist. 1990) ("a void judgment, order or decree may be attacked at any time or in any court, either directly or collaterally"). [Emphasis added].

CAN BE CHALLENGED BY A THIRD PARTY
If an order or judgment was granted by a judge without subject-matter jurisdiction in a court of limited jurisdiction, then a third-party to the action can challenge the validity of that order in any court, if the third party was damaged in any way by the void order. Since an order or judgment issued without subject-matter jurisdiction has no legal force or effect, it cannot be used to damage any other party. Oak Park Nat. Bank v. Peoples Gas Light & Coke Co., 46 Ill.App.2d 385, 197 N.E.2d 73, 77 (1st Dist. 1964) ("that judgment is void and may be attacked at any time in the same or any other court, by the parties or by any other person who is affected thereby."). [Emphasis added].

 

VOID ORDERS ARE VOID EVEN BEFORE REVERSAL
The law is well-settled that a void order or judgment is void even before reversal. Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920) ("Courts are constituted by authority and they cannot go beyond that power delegated to them. If they act beyond that authority, and certainly in contravention of it, their judgments and orders are regarded as nullities. They are not voidable, but simply VOID, AND THIS EVEN PRIOR TO REVERSAL." [Emphasis added]); Old Wayne Mut. I. Assoc. v. McDonough, 204 U.S. 8, 27 S.Ct. 236 (1907); Williamson v. Berry, 8 How. 495, 540, 12 L.Ed. 1170, 1189 (1850); Rose v. Himely, 4 Cranch 241, 269, 2 L.Ed. 608, 617 (1808).

ELEMENTS OF LACK OF JURISDICTION
In courts of limited jurisdiction, subject-matter jurisdiction is determined only by an inspection of the record of the case. The inspection of the record of the case must show that all of the elements of subject-matter jurisdiction existed, and existed at all times. State Bank of Lake Zurich v. Thill, 113 Ill.2d 294, 497 N.E.2d 1156 (1986); Herb v. Pitcairn, 384 Ill. 237, 241 (1943); People ex rel. Curtin v. Heizer, 36 Ill.2d 438, 223 N.E.2d 128 (1967); Brown v. VanKeuren, 340 Ill. 118, 122 (1930); Wabash Area Development, Inc. v. Ind. Com., 88 Ill.2d 392 (1981). Either subject-matter jurisdiction exists, or it doesn't.

If subject-matter jurisdiction is denied, it must be proved by the party claiming that the court has subject-matter jurisdiction as to all of the requisite elements of subject-matter jurisdiction. A partial list of the elements in which the Court is without subject-matter jurisdiction and all of its orders/judgments are void are: (1) no Petition in the record of the case, Brown v. VanKeuren, 340 Ill. 118, 122 (1930), (2) defective Petition filed, Brown v. VanKeuren, 340 Ill. 118, 122 (1930), (3) fraud committed in the procurement of jurisdiction,Fredman Brothers Furniture v. Dept. of Revenue, 109 Ill.2d 202, 486 N.E.2d 893 (1985), (4) fraud upon the court, In re Village of Willowbrook, 37 Ill.App.3d 393 (1962), (5) a judge does not follow statutory procedure,Armstrong v. Obucino, 300 Ill. 140, 143 (1921), (6) unlawful activity of a judge, Code of Judicial Conduct,(7) violation of due process,Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019 (1938); Pure Oil Co. v. City of Northlake, 10 Ill.2d 241, 245, 140 N.E.2d 289 (1956); Hallberg v. Goldblatt Bros., 363 Ill. 25 (1936), (8) if the court exceeded its statutory authority,Rosenstiel v. Rosenstiel, 278 F.Supp. 794 (S.D.N.Y. 1967), (9) any acts in violation of 11 U.S.C. §362(a),In re Garcia, 109 B.R. 335 (N.D. Illinois, 1989), (10) where no justiciable issue is presented to the court through proper pleadings,Ligon v. Williams, 264 Ill.App.3d 701, 637 N.E.2d 633 (1st Dist. 1994), (11) where a complaint states no cognizable cause of action against that party, Charles v. Gore, 248 Ill.App.3d 441, 618 N.E.2d 554 (1st Dist. 1993), (12) where any litigant was represented before a court by a person/law firm that is prohibited by law to practice law in that jurisdiction, (13) when the judge is involved in a scheme of bribery (the Alemann cases, Bracey v. Warden, U.S. Supreme Court No. 96-6133 (June 9, 1997), (14) where a summons was not properly issued, (15) where service of process was not made pursuant to statute and Supreme Court Rules,Janove v. Bacon, 6 Ill.2d 245, 249, 128 N.E.2d 706, 708 (1955), (16) when the Rules of the Circuit Court of Cook County are not complied with, (17) when the Local Rules of the Domestic Relations Division, Cook County, Illinois are not complied with, (18) where the judge does not act impartially, Bracey v. Warden, U.S. Supreme Court No. 96-6133 (June 9, 1997), (19) where the statute is vague,People v. Williams, 638 N.E.2d 207 (1st Dist. 1994), (20) when proper notice is not given to all parties by the movant, Wilson v. Moore, 13 Ill.App.3d 632, 301 N.E.2d 39 (1st Dist. 1973), (21) where an order/judgment is based on a void order/judgment,Austin v. Smith, 312 F.2d 337, 343 (1962); English v. English, 72 Ill.App.3d 736, 393 N.E.2d 18 (1st Dist. 1979), or (22) where the public policy of the State of Illinois is violated, Martin-Tregona v. Roderick, 29 Ill.App.3d 553, 331 N.E.2d 100 (1st Dist. 1975).

All of the above elements must be met before the court is conferred with subject-matter jurisdiction. Should any element not be complied with, the judge is without subject-matter jurisdiction; his/her orders and judgments are void, of no legal force or effect.


Should the judge not have subject-matter jurisdiction, then the law states that the judge has not only violated the law, but is also a trespasser of the law. Von Kettler et.al. v. Johnson, 57 Ill. 109 (1870) ("if the magistrate has not such jurisdiction, then he and those who advise and act with him, or execute his process, are trespassers.");Elliott v. Peirsol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) ("without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers. This distinction runs through all the cases on the subject; and it proves, that the jurisdiction of any court exercising authority over a subject, may be inquired into in every court, when the proceedings of the former are relied on and brought before the latter, by the party claiming the benefit of such proceedings.");

In re TIP-PA-HANS Enterprises, Inc., 27 B.R. 780, 783 (1983) (a judge "lacks jurisdiction in a particular case until it has been demonstrated that jurisdiction over the subject matter exists") (when a judge acts "outside the limits of his jurisdiction, he becomes a trespasser ... ".) ("... courts have held that where courts of special or limited jurisdiction exceed their rightful powers, the whole proceeding is coram non judice ... ").

Trespasser is defined in Black's Law Dictionary (6th Edition) as one who has committed unlawful interference with one's person, property, or rights. If a judge acts without subject-matter jurisdiction, the judge is acting unlawfully, he/she has committed an unlawful interference with one's person, property, or rights.

Is the judge who acts without subject-matter jurisdiction then anything but a common criminal?
And all orders and judgments issued by a judge who acts without subject-matter jurisdiction are, as a matter of law, void.

So can a judge who trespasses upon the law be sued for that trespass? Interesting question, isn't it?

 

All that stuff above is pretty routine and not all that difficult to learn if you keep good notes of what you learn, references and all of that. Another thing one needs to do is to download and print out the Federal Attorney's Manual available on the Federal Court's website.

One would think that if I know all of that and much, much more then why can't I put it together and actually tell people how to go and do it to it.

But what is throwing me is how to actually write it up. All that Whereas stuff that has to go in there and how it should be presented. Should the allegations go first and once all the allegations are made and outlined then comes the summarization of the complaints or does it all go down like a story book would in sequence or what?

What I know is the theory of the matter so to speak but the mechanics is what I'm not properly grasping.

 

hi creditwrench,

would you happen to know which is the hardest state to domesticate a foreign default judgment?

I have tried twice to register with you site, but I never get email notification.

 

No, I wouldn't have the foggiest idea. All I know is what I have read on some forum or other in a couple of posts and that very well may have been right here on Creditnet for all I know. I think I have seen a post at some point in time that said some states (one or two) won't domesticate at all but again thats just pure speculation as to what I think I saw. And you know what thats worth. Not even worth the electrons it took to say it.

So just send me an email by clicking on the link below and we will go from there.