How to File a Motion to Set Aside Judgment
George Simons | December 02, 2022
Summary: We you served with a lawsuit and had a judgment filed against you? It might not be too late to make your defense. Here's how to file a motion to set aside judgment.
If you have an unsettled debt or missed your monthly credit card payments, a creditor may decide to file a complaint against you. The court will then send you a summons and a copy of the creditor's complaint, which you'll then be required to respond to by filing an answer to the court.
You can either respond manually or use SoloSuit to file an attorney-approved response.
There's usually a time limit to when you can file a response, usually between 20 to 30 days depending on the type of lawsuit and the state.
If you fail to file an answer to the court within the stipulated time, the creditor can request the court to enter a default judgment against you. Even if you respond in time, the creditor can still ask the court to find you in default if you do any of the following:
- Skip a court hearing.
- Fail to answer a discovery subpoena.
- Fail to make court-ordered payments.
The court will rule in favor of the creditor if the below conditions are satisfied:
- You're 18 years of age or older.
- There's a complaint or petition against you.
- Failure to answer or respond to a complaint and summons by the deadline.
- You're not on active military duty.
- There's a proof of service that indicates you were properly served.
Use SoloSuit to file a response to debt collectors in 15 minutes.
What happens if the court enters a default judgment against you?
A default judgment from the court gives creditors legal power to collect the debt from you. They can do this by:
- Garnishing your bank account or paycheck.
- Seizing your property.
- Filing judgment liens.
At this point, the only way to stop the creditor from collecting the debt amount you owe them using the above methods is by filing a motion and affidavit to set aside the default judgment.
Reasons to set aside the default judgment
Here are a few conditions that must be met before the court can set aside a default judgment against you:
You need to have a good reason for failing to file an answer to the court after being summoned. A judgment can be set aside for excusable default if there was:
- Irregularity in the way the default was handled.
- A reasonable excuse for not responding.
This indicates that there was unfair or improper conduct in the way the default was handled. And, as a result, you weren't aware that there was a complaint against you in the first place. For instance, if they served the complaint and summons to another person in your household and not you.
Procedural irregularity can occur when:
- Court papers didn't reach you because they were improperly served.
- You didn't receive a notice that you were in default before the default judgment.
- The creditor fails to provide you notice that there's a default judgment entered against you.
If you have a valid reason for not filing an answer to the court or missing a hearing, you can use it as a reason to set aside the default judgment. For instance, if you were admitted to the hospital on the day of your hearing and the court entered a default judgment against you for failure to show up, you can use this as a reasonable excuse. Note that you need to provide proof for the judge to believe your excuse, e.g., a hospital admittance letter.
To successfully set aside a default judgment, you need to tell the court why you don't owe the creditor money. You'll do this by filing an Affidavit of Meritorious Defense.
Some of the defenses you could use include:
- The creditor failed to state that you owe them money in the complaint.
- Part of the debt is paid.
- You had declared bankruptcy before entering a default judgment.
- The statute of limitation has expired.
- The debt is a result of identity theft.
- The debt agreement wasn't fair; the creditor took advantage of you.
However, it's important to note that giving the court reasons you can't pay the debt isn't considered a meritorious defense.
Make the right affirmative defense with SoloSuit.
When should you file a motion to set aside judgment?
In most cases, you have up to 21 days after the court rules against you to file a motion to set aside the judgment. However, this timeline only applies if you were personally served with court papers and failed to respond.
The timeline doesn't apply if you only learned of the case after the court entered a default judgment against you. If 21 days have passed since the court ruled against you, you can file a motion for relief from judgment. You'll need to have a reasonable excuse and meritorious defense for the court to set aside the judgment.
What happens during the hearing?
At the hearing, each party has to tell the judge their side of the story. For example, you'll need to tell the judge why the default judgment should be set aside. On the other hand, the creditor has to explain why the default judgment shouldn't be set aside.
After hearing both sides of the story, the judge may ask questions to both parties and then make a decision. Sometimes, the court may rule on the motion in writing at a later date.
Don't be intimidated by debt collectors. Respond with SoloSuit fast.
What happens if the default judgment is set aside?
If you provided valid reasons for the default judgment to be set aside, the judge might decide to grant your request and set aside the default. This means that you have a second chance of filing an answer to the original complaint.
In that case, you can use SoloSuit to file an answer. The software will create an answer document based on the information you provide. SoloSuit will then have an experienced attorney review the answer document, ensuring it meets all legal requirements before sending it to the court and the plaintiff.
However, the debt collection lawsuit will continue after you file your response with the court.
What happens if the default judgment isn't set aside?
If you didn't provide valid reasons why the default judgment should be set aside, the judge might decide not to grant your request. In such a case, you may ask the court to allow you to pay the money judgment in installments. Alternatively, you can try to work out a payment plan with the creditor outside of court.
If you discover that a default judgment was entered against you without your knowledge, you can file a motion to set aside the judgment. This requests the court to give you a second chance to defend yourself. Suppose the judge grants your motion; the collection case will begin all over again.
What is SoloSuit?
SoloSuit makes it easy to respond to a debt collection lawsuit.
How it works: SoloSuit is a step-by-step web-app that asks you all the necessary questions to complete your answer. Upon completion, you can either print the completed forms and mail in the hard copies to the courts or you can pay SoloSuit to file it for you and to have an attorney review the document.
Respond with SoloSuit
"First time getting sued by a debt collector and I was searching all over YouTube and ran across SoloSuit, so I decided to buy their services with their attorney reviewed documentation which cost extra but it was well worth it! SoloSuit sent the documentation to the parties and to the court which saved me time from having to go to court and in a few weeks the case got dismissed!" – James
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