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Affidavit in Support of Motion for Writ of Error Coram Nobis Regarding Default and Default Judgment Taken Against Defendant who did not Appear and was not Served

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Description

Generally speaking, the writ of error coram nobis is employed, in cases where there is no other remedy, for the purpose of reviewing, correcting, or vacating a judgment in the same court in which it was rendered, on account of errors of fact. These errors of fact must affect the validity and regularity of the proceedings, and were not put in issue at the trial, or were unknown at the time of the trial to the party seeking relief without fault on his or her part. Also, the remedy may be available if such facts were unknown to the trial court, were not passed on by it, and, if known, would have prevented rendition of the judgment.


The writ of error coram nobis is not often granted in civil cases, but it is still available in some courts to correct an error of fact which resulted in the judgment. The coram nobis procedure has largely been replaced by motions to open or vacate the judgment or a writ of audita querela. A writ of audita querela is a writ which lies for a party against whom judgment is recovered, but to whom good matter of discharge has subsequently accrued which could not have been availed of to prevent such judgment.

Definition and meaning

The Affidavit in Support of Motion for Writ of Error Coram Nobis Regarding Default and Default Judgment Taken Against Defendant who did not Appear and was not Served is a legal document used by a defendant who did not receive proper notice of a legal proceeding, resulting in a default judgment. This affidavit serves as a request to the court to reconsider the default judgment based on the lack of notice and the defendant's unavailability to respond or appear in court.

Key components of the form

This affidavit typically includes several key components:

  • Name of the Affiant: The person making the affidavit.
  • Date of Entries: Dates when the default and judgment were entered.
  • Proof of Service: Documentation showing how and when the defendant was allegedly served.
  • Statement of Non-Service: A clear assertion that the defendant was not served prior to the judgment.
  • Description of Discovery: An explanation of how the defendant became aware of the judgment.
  • Affidavit Sworn Statement: The affiant's sworn statement under notary public jurisdiction.

How to complete a form

To properly complete the Affidavit in Support of Motion for Writ of Error Coram Nobis, follow these steps:

  1. Begin by filling in the Name of Affiant and the Court Information, including the county and state.
  2. Indicate the Date of the Motion and relevant dates pertaining to the default and judgment entries.
  3. Provide accurate details regarding the proof of service, including the name of the individual who allegedly served the documents.
  4. Clearly state in your own words that you were not served and provide details of how you found out about the judgment.
  5. Conclude with your signature and have the affidavit notarized as required.

Who should use this form

This affidavit is intended for individuals who:

  • Were named as a defendant in a legal action but did not receive any notice of the proceedings.
  • Have been subject to a default judgment without the opportunity to defend their case.
  • Wish to contest that default judgment in court by showing they were not properly served.
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FAQ

The writ of coram nobis (also known as writ of error coram nobis, writ of coram vobis, or writ of error coram vobis) is a legal order allowing a court to correct its original judgment upon discovery of a fundamental error that did not appear in the records of the original judgment's proceedings and would have prevented

A vacated judgment makes a previous legal judgment legally void. A vacated judgment is usually the result of the judgment of an appellate court, which overturns, reverses, or sets aside the judgment of a lower court. An appellate court may also vacate its own decisions.

Fill out a Notice of Motion to Vacate Judgment and Declaration (Small Claims) (Form SC-135 ). File it with the small claims court clerk. Pay the filing fee. If you cannot afford the fee, ask for a fee waiver. The clerk will give you a date for your hearing.

In order to vacate a judgment in California, You must file a motion with the court asking the judge to vacate or set aside the judgment. Among other things, you must tell the judge why you did not respond to the lawsuit (this can be done by written declaration).

Yes. Judges can vacate other judges' orders. It happens all the time.

Fill out a Notice of Motion to Vacate Judgment and Declaration (Small Claims) (Form SC-135 ). File it with the small claims court clerk. Pay the filing fee. If you cannot afford the fee, ask for a fee waiver. The clerk will give you a date for your hearing.

A writ emanating from an appellate court, demanding that a lower court convey the record of a case to the appellate court so that the record may be reviewed for alleged errors of law committed during a juridical proceeding.

A Motion to Vacate is a request to the court to withdraw a previous order or judgment it entered.An appeal is a request to a higher court to change the decision made by a lower court. A Motion to Vacate asks the same court to withdraw its decision. A Motion to Vacate is rarely granted.

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Affidavit in Support of Motion for Writ of Error Coram Nobis Regarding Default and Default Judgment Taken Against Defendant who did not Appear and was not Served