Virginia Motion to Vacate a Judgment

Introduction

Key Things to Know

1. 1

   Virginia's base rule is Rule 1:1: all final judgments, orders, and decrees remain under the control of the trial court and may be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer. The 21 days limit when the court itself may act, not only when you file, so file early enough for the court to rule in time.

2. 2

   Lack of notice, circuit court: Va. Code 8.01-428(C) applies if counsel, or a party not represented by counsel, who is not in default in a circuit court is not notified by any means of the entry of a final order, and the court is satisfied that the lack of notice did not result from a failure to exercise due diligence and denied that party an opportunity to pursue post-trial relief in the circuit court or to file an appeal. The circuit court may, within 60 days of the entry of such order, modify, vacate, or suspend the order or grant the party leave to appeal. The 60 days limit when the court may act, so file well before they run out.

3. 3

   Under Va. Code 8.01-428(B), clerical mistakes in judgments or other parts of the record, and errors arising from oversight or from an inadvertent omission, may be corrected by the court at any time.

4. 4

   Default judgments: 8.01-428(A) lets the court, on motion of the plaintiff or judgment debtor and after reasonable notice to the opposite party, set aside a judgment by default or a decree pro confesso on these grounds: (i) fraud on the court, (ii) a void judgment, (iii) proof of an accord and satisfaction, or (iv) proof that the defendant was, at the time of service of process or entry of judgment, a servicemember as defined in 50 U.S.C. 3911. A fraud-on-the-court motion must be made within two years from the date of the judgment. Also see /legal-document/set-aside-default/virginia.

5. 5

   General district court: under Va. Code 16.1-97.1, no new trial may be granted unless a motion is made within thirty days after the date of judgment, not including the date of entry, and the court shall rule not later than forty-five days after the date of judgment, not including the date of entry of such judgment. Form DC-368 is the district court motion for new trial or rehearing (civil). Ask the clerk whether the same steps apply in a small claims division.

6. 6

   Service by publication, district court: Form DC-368, a district court form, lets a defendant who was served by publication move to rehear where it has been two years or less since the judgment and one year or less since being served with a copy (Va. Code 8.01-322). For a circuit court judgment, 8.01-428(D) preserves relief to a defendant not served with process as provided in 8.01-322 and an independent action at any time; ask the circuit court clerk what procedure applies.

7. 7

   Do not assume that filing pauses enforcement. Rule 1:1 lets the court suspend a final judgment within 21 days after entry, and 8.01-428(C) lets the circuit court suspend an order within 60 days in the lack-of-notice case. Ask the court for a suspension in writing.

Virginia Requirements for Motion to Vacate

• 21-Day Trial-Court Control

  Rule 1:1: all final judgments, orders, and decrees remain under the control of the trial court and may be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.

• Lack of Notice (Circuit Court)

  Va. Code 8.01-428(C): if counsel, or an unrepresented party, not in default in a circuit court is not notified of the final order, and the lack of notice did not result from a failure to exercise due diligence and denied an opportunity to pursue post-trial relief or to file an appeal, the court may within 60 days of entry modify, vacate, or suspend it or grant leave to appeal.

• Clerical Mistakes

  Va. Code 8.01-428(B): clerical mistakes and errors arising from oversight or inadvertent omission may be corrected by the court at any time.

• Default Judgments

  Va. Code 8.01-428(A): on motion and reasonable notice, a judgment by default or decree pro confesso may be set aside for (i) fraud on the court (within two years), (ii) a void judgment, (iii) accord and satisfaction, or (iv) proof the defendant was a servicemember at service of process or entry of judgment. Listed GDC form: DC-434.

• District Court New Trial

  Va. Code 16.1-97.1: motion within thirty days after the date of judgment, not including the date of entry; the court shall rule not later than forty-five days after the date of judgment. Form DC-368.

• Publication Service Rehearing

  Form DC-368 (Va. Code 8.01-322): served by publication, two years or less since the judgment and one year or less since service of a copy.

• Independent Action

  Va. Code 8.01-428(D): the section does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or proceeding.

• Ground and Timeliness Statement

  Name the rule or subsection relied on, the date of entry, the date you received notice, and the facts. Rule 1:1 (21 days) and 8.01-428(C) (60 days) limit when the court may act, so file early; a 16.1-97.1 new-trial motion must be made within 30 days.