Oklahoma Motion to Vacate a Judgment

Introduction

Key Things to Know

1. 1

   Oklahoma's statutes give the district court power to vacate or modify its own judgments or orders within set times (12 O.S. 1031). On a motion made not later than 30 days after a judgment is filed with the court clerk, the court may correct, open, modify, or vacate it (12 O.S. 1031.1(B)). If you did not prepare the judgment, 12 O.S. 696.2 required a copy to be mailed to you, and the court records do not reflect the mailing within three (3) days, exclusive of weekends and holidays, the motion may be filed no later than 30 days after the earliest date the court records show a copy was mailed to you (12 O.S. 1031.1(B)). The court decides whether relief is warranted.

2. 2

   The grounds in 12 O.S. 1031, in the statute's words, are: (1) granting a new trial for the cause, within the time and in the manner prescribed in 12 O.S. 651 through 655; (2) as authorized in 12 O.S. 2004(C), where the defendant had no actual notice of the pendency of the action at the time of the filing of the judgment; (3) mistake, neglect, or omission of the clerk or irregularity in obtaining a judgment or order; (4) fraud practiced by the successful party in obtaining a judgment or order; (5) erroneous proceedings against an infant or a person of unsound mind, where the condition does not appear in the record, nor the error in the proceedings; (6) the death of one of the parties before the judgment; (7) unavoidable casualty or misfortune preventing the party from prosecuting or defending; (8) errors in a judgment shown by an infant in twelve (12) months after arriving at full age, as prescribed in 12 O.S. 700; and (9) taking judgments upon warrants of attorney for more than was due to the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking the judgment.

3. 3

   After 30 days, proceedings to vacate or modify on the grounds in paragraphs 2, 4, 5, 6, 7, 8 and 9 of 12 O.S. 1031 are by petition, verified by affidavit, setting forth the judgment, the grounds, and the defense to the action if the applicant was the defendant (12 O.S. 1031.1(C), 1033), unless approved by all parties who have entered an appearance in the lawsuit (1031.1(C)). A summons issues and is served as in a new civil action.

4. 4

   Time limits under 12 O.S. 1038 depend on the ground. For fraud (paragraph 4), proceedings against an infant or person of unsound mind (paragraph 5) and unavoidable casualty (paragraph 7), proceedings must be commenced within 2 years after the judgment is filed, or for an infant or person of unsound mind within 2 years after the disability is removed. For paragraph 9, the limit is 1 year after the defendant has notice of the judgment. For mistake, neglect or omission of the clerk or irregularity (paragraph 3) and the death of a party before judgment (paragraph 6), proceedings shall be within three (3) years. For no actual notice (paragraph 2) after the 30 days, ask the clerk or a lawyer which limit applies.

5. 5

   Under 12 O.S. 1038, a void judgment, decree or order may be vacated at any time, on motion of a party or any person affected by it.

6. 6

   Filing does not by itself stop enforcement. Under 12 O.S. 1036, the party seeking to vacate may obtain an order suspending proceedings if it is shown probable, by affidavit or the record, that the party is entitled to have the judgment vacated or modified, and the court may require an undertaking to the adverse party.

7. 7

   Small claims judgments fall under the Small Claims Procedure Act, 12 O.S. 1751 et seq., and eviction cases under 12 O.S. 1148.1 et seq. (1148.14 covers eviction cases on the small claims docket); ask the clerk which procedure applies to vacate those judgments. For a default judgment, also see /legal-document/set-aside-default/oklahoma.

Oklahoma Requirements for Motion to Vacate

• 30-Day Motion

  12 O.S. 1031.1(B): on motion made not later than 30 days after the judgment is filed with the court clerk, the court may correct, open, modify or vacate it. If you did not prepare it, 696.2 required mailing you a copy, and the records show no mailing within 3 days (excluding weekends and holidays), the 30 days run from the earliest recorded mailing.

• Verified Petition After 30 Days

  12 O.S. 1031.1(C), 1033: after 30 days, grounds in 1031 paragraphs 2, 4, 5, 6, 7, 8 and 9 are raised by petition verified by affidavit, stating the judgment, the grounds and the defendant's defense. Summons issues as in a new civil action. Exception: approval by all parties who have entered an appearance (1031.1(C)).

• Statutory Grounds

  12 O.S. 1031(1)-(9): new trial for cause; no actual notice under 2004(C); clerk mistake or irregularity; fraud by the successful party; erroneous proceedings against an infant or person of unsound mind; death of a party; unavoidable casualty or misfortune; infant's errors; warrant-of-attorney judgment.

• Time Limits by Ground

  12 O.S. 1038: paragraphs 4, 5 and 7 within 2 years after filing (2 years after a disability is removed); paragraph 9 within 1 year after notice; paragraphs 3 and 6 within three years. Void judgments: any time.

• Order Suspending Proceedings

  12 O.S. 1036: proceedings may be suspended on an affidavit or the record showing probable entitlement to vacation; the court may require an undertaking to the adverse party.

• Defense to the Action

  A defendant's verified petition must set out the defense to the action (12 O.S. 1033). State it with supporting facts.

• Ground and Timeliness Statement

  Name the 12 O.S. 1031 paragraph relied on, the date the judgment was filed, the date you received notice, and why the filing is within the limit for that ground.