Fill and Sign the Vacate Defendant Form

IN THE ____________________________ (Name of Court) COURT OF _____________________________ (Name of County), ________________________ _ (Name of State) _______________________________________ PETITIONER (Name of Petitioner) V. CAUSE NO. ______,______ ________________________________________ RESPONDENT (Name of Respondent) Petition to Vacate Judgment due to Failure to Acquire Jurisdiction COMES NOW _______________________________ (Name of Petitioner) , Petitioner in the above-styled and numbered cause, by and through his attorney, and files this his Complaint against Respondent, _______________________________ (Name of Respondent) , and in support thereof would show unto the Court the following matters and facts: 1. Respondent, _______________________________ (Name of Respondent), by and through its attorney, ___________________________________ (Name of Attorney for Respondent) , with offices at _____________________________________________ ______________________________________________________ (street address, city, county, state, zip code) , did on _____________________________________ (date) file its Complaint at law in an action for damages against Petitioner as Defendant. Said cause of action was docketed as Cause No. __________________________ (case number) in the records of the _________________________________________________________ (title of trial court) . 2. Petitioner, who was named as Defendant in Cause No. _____________________ (case number) , was a non-resident of _______________________________ (name of forum state) at all times material, as was the Plaintiff in the action. The facts as to non- residence of both Plaintiff and Defendants in Cause No. __________________________ (case number) , affirmatively appear in Plaintiff's Complaint filed in the Cause. 3. On ____________________________________ (date), the _________________ __________________________________________________ (title of trial court), acting at the insistence and request of ________________________________________ (Name of attorney for Plaintiff) , counsel for Plaintiff in the Cause, entered the default of Defendant in the Cause and entered judgment in the cause in favor of Plaintiff and against Defendant, the Petitioner in this proceeding, in the amount of $ ______________ (dollar amount of judgment) and costs. That Judgment was docketed in record ________ _______________________ (record designation), page __________ (page number), in the office of the __________________________________________________________ (title of trial court) . 4. This Petition is filed by the Petitioner in this proceeding, being the same person named as Defendant in Cause No. _______________________ (case number), to set aside as completely void the Judgment entered against him on _____________________ ____________ (date) in that cause. This Petition is filed in accordance with the provisions of (cite statute) _____________________________________ of ___________________________ (name of forum state) . Petitioner alleges that there was irregularity in the obtaining and entry of the judgment referred to above, in that the ___________________________________________________________ (title of court) had not obtained jurisdiction of Defendant in the cause. By virtue of such lack of jurisdiction, the Court was without power to enter Judgment against Petitioner, and therefore any purported judgment is null and void and of no force and effect whatever. 5. Plaintiff in the cause wholly failed to acquire jurisdiction of Defendant and failed to make any good and sufficient service of notice on Defendant or to make a good and sufficient return of service of an original notice on Defendant in the Cause. The _______ _________________________________________________ (title of trial court), by reason of such failure of Plaintiff, had no jurisdiction whatever of Defendant in the cause, and, therefore, the Judgment entered on __________________________________ (date) in the Cause against Defendant referred to above was void and is of no effect whatever. 6. The above-entitled court did not acquire jurisdiction of Defendant, Petitioner in this proceeding, on ____________________________________ (date trial commenced), or at any other time. Plaintiff in the cause wholly failed to acquire jurisdiction or vest the court with jurisdiction of Defendant for each and all of the following reasons: A.Plaintiff in Cause No. ________________________ (case number) failed to file, prior to taking a default judgment, any return of personal service of an original notice on Defendant; B.Plaintiff in the cause failed to serve or cause to be served on Defendant a notice of suit as provided by (cite statute or rule of civil procedure) ________________ ____________________________________; C. Plaintiff wholly failed to file any proof of service of an original notice, as required in an action against non-residents pursuant to (cite statute or rule of civil procedure) _____________________________________________; D. Plaintiff wholly failed to file any proof of personal service on Defendant in the manner provided by (cite statute or rule of civil procedure) __________________ ___________________________; E. Plaintiff wholly failed to file proof of mailing or personal delivery of notification to Defendant in the manner provided by (cite statute or rule of civil procedure) _______________________________________; G. Plaintiff wholly failed to file in the cause any proof of actual service within the State of _____________________________ (name of state) on Defendant as provided by (cite statute or rule of civil procedure) _____________________________; and H. Plaintiff wholly failed to file the restricted certified mail return receipts as provided by (cite statute or rule of civil procedure) _____________________________. 7. Defendant in the cause did not receive any notice of the pendency of the cause in which he was named a Defendant. The first knowledge that Defendant had of the pendency of the cause was on ________________________________ (date), by (a letter from name and title, if any, of correspondent) _________________________________ _______________________________________________________________________________________________________________________________________________ , advising that a Judgment had been obtained in the cause in the amount of $ ________________ (dollar amount of judgment) in favor of Plaintiff and against Defendant. By reason of such delayed knowledge of the entry of the Judgment in the cause, Petitioner could not proceed under the provisions of (cite statute or rule of civil procedure) __________________________________________. 8. Petitioner, who was named Defendant in the cause, states and alleges that he has a meritorious defense to the claims asserted in the Complaint filed in the Cause. An affidavit in support of this allegation is attached, marked Exhibit A, and by this reference made a part of this Petition. WHEREFORE, Petitioner requests that the Judgment previously entered by the _________________________________________________ (title of trial court) in Cause No. _________________________ (case number), in which _________________ ____________________________ (name of Respondent in trial court) was Plaintiff and _________________________________________ (name of Petitioner in trial court) was Defendant, which judgment was entered on ___________________________ (date), be held void and of no force and effect whatever, and that such Judgment be vacated and set aside. Petitioner further requests that Respondent/Plaintiff be enjoined from issuing any execution on the alleged judgment or from taking any other steps to enforce the alleged judgment. Respectfully submitted this ____________________________________ (date). _________________________________________ (Name of Petitioner) By: ______________________________________ _________________________________________ (Name & Signature of Petitioner’s Attorney) State Bar No. ___________________ Attorney for Petitioner Certificate of Service This is to certify that I, ____________________________________ (Name of Attorney) , attorney for Petitioner _____________________________________ (Name of Petitioner) , have this date served a true and correct copy of the above and foregoing Petition to Vacate Judgment due to Failure to Acquire Jurisdiction by U.S. Mail, postage fully prepaid, to the following counsel of record for Respondent: ____________________________________ (Name of Attorney) Post Office Box _________________ _________________________________________________________ City, State, Zip Code This the _____day of _____________________________, 20_______. Respectfully Submitted, ___________________________________ (Name of Attorney) State Bar No. ________________ Attorney for Petitioner OF COUNSEL: ____________________________________ (Name of Petitioner’s Attorney) Post Office Box _______________________________________________________________________ City, State, Zip Code Telephone: ____________________________