Q: What do I do during a hearing on Defendant's Motion to Vacate Default Judgment on Stipulation?
I sued in small claims for breach of contract and we went to court ordered mediation. We reached a stipulation agreement in which the defendant would pay me money as well as meet at a certain time and place to talk and apologize. The defendant paid but forgot to show up to the meeting and texted me that he lost track of time, when I already left. I filed affidavit for a default judgment, the defendant didn't give a response, and the judge granted it. The defendant hired an attorney and the attorney filed a motion to vacate judgment and stated that the defendant was held up at work and could not make it, and it is excusable neglect under 1.540(b). The judge scheduled an evidentiary hearing for April. Is hiring an attorney worth it? The default judgment was for a few thousand dollars. Is forgetting excusable neglect?
A:
Totally up to you to decide if it is worth hiring an attorney. I would say yes, as now you are going to have to argue your case (or at least the motion to set aside default) against an experienced attorney.
Good luck,
A:
Forgetting the meeting may be deemed excusable neglect, and it would have to also be argued that failure to respond to the affidavit was also excusable. The defendant would have to persuade the judge regarding both of those things.
In my opinion, it is unusual that the mediated settlement would require such a meeting; the payment of the money being the most important issue. Is it accurate to assume that the defendant didn't pay the money either? The judge may very well rule that the meeting was not a significant part of the settlement and therefore vacate the judgment, whether you have an attorney or not.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
