What happens if a Judgement is set aside?

If the judgment is set aside, you and the creditor are put back in the position you were both in immediately before the judgment. This means if you have an argument or 'defence' against the judgment which you didn't get a chance to raise when the claim was first issued, you have a second chance to do this.

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Michigan Motion and Affidavit to Set Aside Default - Civil

Michigan Motion and Affidavit to Set Aside Default - Civil

Category:

Civil Procedure - Statewide - Small Claims - Motions

State:

Michigan

Control #:

MI-024-SC

Format:

Instant download

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Description

A motion is a written request to the court to take a certain action. The court will either grant or deny the motion in accordance with law and court rules. This document, a Motion to Set Aside Default and Order (Landlord/Tenant), is a model motion requesting the named action from the court (or a general motion form). Adapt to fit your facts and circumstances. Available for download now in standard format(s). USLF control no. MI-024-SC

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FAQ

To halt a motion for default judgment in Michigan, it is essential to respond promptly. You can file a motion of your own, potentially supported by a Michigan Motion and Affidavit to Set Aside Default - Civil. Your filing must demonstrate why the default judgment should not proceed. Quick action is vital here, as delays may lead to unfavorable outcomes.

To set aside a default judgment in Michigan, start by preparing a Michigan Motion and Affidavit to Set Aside Default - Civil. This document should explain why the default judgment should be overturned, including any evidence you may have. Once you file it with the court, a hearing may be scheduled to review your request. Familiarizing yourself with court processes can help streamline this task.

Setting aside a default judgment in Michigan can be manageable, particularly with the right guidance. You will need to file a Michigan Motion and Affidavit to Set Aside Default - Civil, which outlines your reasons for requesting the change. While the process does have specific requirements, many find it straightforward with proper documentation. Support from platforms like USLegalForms can make this journey even easier.

After a default judgment is issued in Michigan, the court grants the judgment without hearing from the defendant. This judgment can lead to serious consequences, including wage garnishment or a lien on property. However, you can file a Michigan Motion and Affidavit to Set Aside Default - Civil to request that the court reopen the case. This motion allows you to present your reasons for not responding in time and possibly overturn the default judgment.

A good reason to set aside a default judgment includes demonstrating that you did not receive proper notification of the court proceedings, which prevented your participation. Additionally, if you can show that new evidence has emerged or that there were significant errors in the initial case, this can also justify your request. The goal of the Michigan Motion and Affidavit to Set Aside Default - Civil is to provide a fair opportunity for all parties involved. It’s important to articulate your reasons clearly and concisely to the court.

First, you can ask the court to set aside the default judgment and give you an opportunity to contest it. Next, you can settle the debt with the debt buyer for an amount less than what the default judgment is for. And finally you can eliminate the default judgment completely by filing for bankruptcy.

If the judgment is set aside, you and the creditor are put back in the position you were both in immediately before the judgment. This means if you have an argument or 'defence' against the judgment which you didn't get a chance to raise when the claim was first issued, you have a second chance to do this.

What happens next? When you file your Motion and Affidavit to Set Aside Default, you will get a hearing date and time from the court clerk. At the hearing, the judge will grant or deny the motion. If the judge grants your motion, the default or default judgment will be set aside, and the case will move forward.

A judge can set aside a default judgment for the following reasons, among others: Mistake, inadvertence, surprise, or excusable neglect of the party who failed to defend himself in the case. Fraud, misrepresentation, or other misconduct by the party who filed the case.

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Motion and Affidavit to Set Aside Default - Civil

Note: This summary is not intended to be an all-inclusive discussion of the law and procedures of small claims in Michigan, but it does contain basic and other information. This summary only discusses civil claims (property and money claims that may be filed in small claims court). Criminal charges are not discussed.

Definition - Small claims courts, also sometimes called "Peoples Court", is a court of limited jurisdiction. Limited jurisdiction means only certain matters may be filed and heard by the small claims court. There is also a maximum claim amount limitation. Small claims court offer a quick, informal and inexpensive way of resolving many types of disputes you may have with particular individuals or companies.

Maximum Amount of Claim Small Claims Court may hear in Michigan: $3,000.00

Which Court hears small claims in Michigan? According to the Michigan Statutes Annotated Chapter 84, Section 27A.8401, thesmall claims court is a division of the district court. Claims for $3,000.00 or less will be heard in this particular court.

Who hears the claims in small claims court? The claim will be heard by a magistrate or judge.

Claims over which the Small Claims Court has Jurisdiction:

The small claims court in Michigan may hear any of the following claims if the amount in controversy does not exceed $3,000.00:

1. recovery of money
2. action to recover possession of personal property
3. The above list is not exhaustive but does contain most of the common claims. However, the following claims MAY NOT be heard in small claims court: libel, slander, professional malpractice, assigned claims, and punitive damages.

Who may file a claim in small claims court? An individual, partnership or corporation (or LLC) may file a claim against another individual(s), partnership or corporation (or LLC) in small claims court if jurisdiction exists to hear the claim and the amount of the claim or property involved does not exceed $3,000.00.

Instruction Sheets: According to Michigan Statutes Annotated Chapter 84, Section 27A.8401(1) the state court administrator shall prepare instruction sheets clearly explaining in plain English how the small claims division functions and how to commence and defend an action in the small claims division. A copy of the instruction sheet must be given to the claimant upon filing a claim. Copies of the instruction sheets shall be made available at the office of each clerk and deputy clerk of the district court and a copy of the defendant's instruction sheet shall be sent by the clerk or deputy clerk to the defendant along with the copy of the affidavit served upon the defendant under section 8404.

Must you be represented by an attorney? In small claims cases, the parties are not allowed to have an attorney represent them.

Things to do before you File a Claim: Get the facts straight so you can complete the forms correctly and answer any questions court personnel may need to know. Be sure to obtain the correct legal name of the defendant, correct address and place/address of employment. If the defendant is a Corporation or Limited Liability Company you would use the legal corporate or LLC name as the defendant. If the defendant is a Corporation or LLC, you may need to contact the secretary of state in your state and obtain the proper name and address to serve with a copy of the suit. This person is called a registered agent and is designated by the corporation to receive process or summons when the corporation is sued. Be sure to also contact the small claims court to determine the filing fee for filing the claim.

How to File the Claim: The plaintiff must file an affidavit and claim form with the court clerk.

Who serves the Defendant with summons or process and how is the defendant served: Upon the filing of the affidavit, the court clerk will have a copy of the affidavit served upon each defendant with a notice directing the defendant to appear and answer before a judge of a small claims division. According to the Michigan Statutes Annotated Chapter 84 Section 27A.8406, the date for the appearance of the defendant provided in the notice shall not be less than 15 days nor more than 45 days after the date of the notice. The person filing the claim shall receive from the clerk a copy of the affidavit and notice of hearing. The plaintiff shall appear on the date shown in the notice of hearing and have all books, papers, and witnesses necessary to prove the claim. If the notice is not served upon the defendant at least 7 days before the appearance date, the plaintiff may apply to the clerk or the deputy clerk for a new notice setting a new date for the appearance of the defendant which shall not be less than 15 days nor more than 30 days after the date of the issuance of the new notice.

If the defendant is not personally serviced or did not sign the certified mail return receipt at least 7 days before the appearance date, there shall not be jurisdiction to render judgment, unless the defendant appears on the appearance date and does not request a continuance. If the defendant was not served within the minimum time specified, the matter, upon request of either party, shall be continued for not less than 7 days.

Return of Summons: Where service by certified mail is made, it will be made by the clerk and the receipt of mailing together with the return card signed by the defendant will constitute proof of service.

Removal to another Court: According to Michigan Statutes Chapter 84, Section 27A.8411, before the commencement of a trial in the small claims division, the district court judge or magistrate shall inform both parties, orally or in writing, of the right of removal before trial to the general civil division and of all rights waived if they choose to remain in the small claims division.

How are hearings scheduled? The clerk of the court will provide you with the procedure to set the case for trial or hearing at the time you file your claim.

Subpoena of Witnesses: If witnesses are required but unwilling to voluntarily attend unless they are subpoenaed, you may obtain a subpoena issued by the court clerk for service on the witness. The subpoena is an order for the witness to appear at the hearing and testify. Some employers may require that an employee be subpoenaed in order to be excused from work.

Trial Procedures: The trial procedure is generally informal than other courts although the formality will vary from county to county and judge to judge. The case will usually be called in open court and you will respond that you are present and ready to proceed. You will then be advised when to present your claim. Be prepared to present your claim in your own words. Be prepared to question witnesses if witnesses are needed.

What happens if the defendant does not appear at trial? Usually, if the defendant does not appear at trial, a default judgment will be entered in your favor for the amount of the claim or other relief.

Judgment: If the defendant fails to appear, or if the court rules for you after the hearing, a judgment will be entered by the court for the amount of the claim, or other relief sought.

Appeal: According to the Michigan Statutes Annotated Chapter 84, Section 27A.8412, unless a party removes a small claims action to the district court pursuant to section 8408(4), all parties to an action in the claims division shall be considered to have waived the right to counsel, the right to trial by jury, the right to recover more than the applicable jurisdictional amount as prescribed by Section 8401, and any right of appeal, except that if the action is heard before a district court magistrate pursuant to section 8427, the parties have the right to an appeal to the small claims division of the district court as provided by section 8427. The affidavit prescribed in section 8402 shall contain a statement that the plaintiff understands that he or she has waived these rights.

Collection of Judgment: The prevailing party may collect his or her money judgment through garnishment.

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Other Matters:

Are Motions allowed? Motions are allowed by the parties on a limited basis.

Continuances: A continuance will only be allowed for good cause.

Out-of-Court Settlement: According to the Michigan Statutes Annotated Chapter 84, Section 27A.8410 before or at the hearing the parties may make a settlement upon those terms as they may agree. The settlement shall be in writing and signed by both parties. Upon filing of the settlement with the court, the judge shall review the settlement and may enter it as the judgment of the court or may require that a full hearing take place. The judgment shall include a warning that the defendant's failure to the judgment pursuant to its terms or any installment payment ordered may result in execution against the defendant's property and that the defendant may be compelled to appear for an examination of the defendant's assets. If the defendant is not present when the judgment is rendered, or is present but does not immediately pay the full amount of the judgment when the judgment is entered, the judge shall order that the defendant, within thirty days after the date of entry of the judgment, pay the judgment in full or disclose in writing to the plaintiff and the court his or her place of employment and the location of his or her accounts in state or federally chartered banks, savings, and loan associations, and credit unions.

When Payment is Received: When the judgment has been satisfied, the receiving party must send written notice to the court that the judgment has been satisfied.

Cross-Claims, Counterclaims, and Third-Party Claims:
A party may file a counterclaim against the plaintiff. According to Michigan Statutes Annotated Chapter 84, Section 27A.8423, if a defendant in a small claims action has a claim against the plaintiff, which claim is for an amount over the jurisdiction of the small claims division but of a nature which would be subject to counterclaim in accordance with rules of the supreme court, he may commence the action against the plaintiff in a court of competent jurisdiction and file with the clerk or deputy clerk of the small claims division wherein the plaintiff has commenced his action, at or before the time set for the trial in the small claims action, an affidavit in a form prescribed by the supreme court setting forth the fact of the commencement of such action by the defendant.

What happens if a defendant has filed bankruptcy? If the plaintiff has filed a claim against the defendant and the plaintiff is aware that the claim is listed as a debt in a bankruptcy proceeding, federal law prohibits the plaintiff from pursuing the claim in small claims court.

Common Forms used in Small Claims Court:

Claim Statement/Complaint
Summons
Return of Summons
Answer
Subpoena
Abstract of Judgment

General Information for 10th District Court Small Claims Action:

http://courts.co.calhoun.mi.us/book017.htm#WHAT IS A SMALL CLAIMS