What is a 473b motion?

SQUILLARIO. Fortunately, Code of Civil Procedure Section 473(b) offers a potential escape hatch when an attorney's mistake, inadvertence, surprise or neglect has harmed the client.

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Motion to Vacate or Set Aside Entry of Default and Default Judgment...

Alameda California Motion to Vacate or Set Aside Entry of Default and Default Judgment Due to Mistake, Inadvertence, Surprise, or Excusable Neglect

Name: Alameda California Motion to Vacate or Set Aside Entry of Default and Default Judgment Due to Mistake, Inadvertence, Surprise, or Excusable Neglect
Brand: US Legal Forms
Rating: 4.66 (456 reviews)

Category:

Civil Actions - Default Judgments

State:

Multi-State

County:

Alameda

Control #:

US-01530BG

Format:

Instant download

Description

In deciding whether to set aside a default judgment, courts seek to balance two competing interests: (1) the need to promote judicial economy; and (2) the need to preserve an individual's right to defend on the merits. Therefore, in addition to the requirement that defendant show that the judgment was entered through excusable neglect or another statutory ground, the court will consider a variety of factors, including:

" the nature and extent of the prejudice which may be suffered by the non-defaulting party if the default is set aside;

" the presence of material issues of fact;

" the presence of a meritorious defense to the claim;

" the significance of the interests at stake, including, but not limited to, the amount of money involved;

" whether the failure to answer was intentional or willful or the result of conscious indifference;

" whether party or counsel bears responsibility for default; and

" the availability of less drastic sanctions.

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FAQ

CCP Section 473 permits the trial court to 'relieve a partyfrom a judgment, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.

Under CCP § 473(b), the court may set aside a default and default judgment if the defendant asking for the set aside presents enough evidence to the court to demonstrate that the default was entered by inadvertence, mistake, surprise, or excusable neglect.

Excusable neglect is a term associated with proceedings, notably in bankruptcy cases, that includes inadvertence, mistake, carelessness, or any intervening circumstances beyond a party's control. A court has the direction to allow a party to file a motion after the deadline if it finds excusable neglect.

Excusable negligence is one which ordinary diligence and prudence could not have guarded against.125 The circumstances should be properly alleged and proved. In this case, we find that Lui Enterprises' failure to answer within the required period is inexcusable.

Related Content. Cancelling a judgment, order or a step taken by a party in proceedings. For example, a default judgment may be set aside under CPR 13, or an order may be varied or set aside under CPR 3.1(7).

Deadline to ask the court to vacate the default judgment ), you have 180 DAYS from the date you DISCOVERED there was a judgment against you to file a motion to vacate.

You must file a request for order to set aside under this law within a reasonable timeBUT there are strict deadlines: You must file the request for order to set aside within 2 years after the date when the default judgment was entered against you.

Any neglect that implies more than unintentional inadvertence can be referred to as an inexcusable neglect. It simply means an unjustifiable neglect. A finding of an inexcusable neglect in, for example, failing to file an answer to a complaint, will prevent the setting aside of a default judgment.

SQUILLARIO. Fortunately, Code of Civil Procedure Section 473(b) offers a potential escape hatch when an attorney's mistake, inadvertence, surprise or neglect has harmed the client.

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See California Civil. Procedure Before Trial, chap 50 (4th ed Cal CEB).Janet filed a motion to set aside the default judgment under Fed. Aside the default or default judgment. See Rule 55(c) of the Federal Rules of Civil Procedure. Vacate and set aside the default judgment. For a damages award despite the entry of default. Court granted motion to set aside default and default judgment. Summary judgment in mandamus or prohibition cases. For seeking to set aside a default judgment are the tenant's (or the tenant's lawyer's) mistake, inadvertence, surprise, or excusable neglect.328.

Alameda California Motion to Vacate or Set Aside Entry of Default and Default Judgment Due to Mistake, Inadvertence, Surprise, or Excusable Neglect

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What is the purpose of Code of Civil Procedure 473 B )?

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What is excusable neglect in California?

What constitutes excusable negligence?

What does set aside mean in court?

How long do you have to set aside a default Judgement California?

How long after a default Judgement Can you set aside California?

What is inexcusable neglect?

What is a 473b motion?

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Why would someone file a Motion to Vacate or Set Aside Entry of Default and Default Judgment?

What is a default judgment?

What are some common reasons for filing a motion to vacate a default judgment?

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