Vacating a Default Judgment

Authored by , LegalMatch Legal Writer and Attorney at Law

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What Is a Default Judgment?

When someone is being sued, they are required to respond. When a person responds to allegations made against them, it is typically called "filing an answer" with the court. If that person fails to respond within a certain the time period, or if they fail to appear in court, a judgment will be entered against them. This is called a default judgment. 

Can a Default Judgment Be Removed? 

In some instances, a default judgment can be removed. This process is called vacating or setting aside the judgment. In order to have the default judgment vacated or set aside, the person must show the court they have a good reason to do so. This is done by filing what is called a motion to vacate the judgment with the court. In filing the motion, the person must generally cite one of the following reasons for why they failed to respond or missed a court appearance:

  1. Mistake, inadvertence, surprise, or excusable neglect;
  2. Lack of notice;
  3. New evidence had been discovered;
  4. Fraud
  5. Judgment was satisfied or discharged;
  6. Some other compelling reason justifying the failure to answer

The court will then usually hold a hearing on the motion and determine whether to vacate the judgment. The success rate of these motions will vary quite a bit from court to court. However, given how complicated legal system can be, motions to vacate a default judgment are fairly liberally granted. Courts are more inclined to give each party the opportunity to argue their side of the case based on its merits, rather than allowing a judgment by default to stand.

Additionally, the type of argument an individual will be able to make will depend on how long the default judgment has stood. For instance, a person arguing 'mistake, inadvertence, surprise, or excusable' more than a year after the judgment had been entered may find themselves in front of a hostile court. However, if the person had been out of the country or not properly served papers, the court may be more understanding.

It is important to remember that succeeding on a motion to vacate a default judgment is granted is not the same as winning a case. Setting aside the default judgment simply gives a party the opportunity to file an answer to the original complaint. 

Should I Consult an Attorney?

Any time you are being sued, you will want to have an experienced attorney defending you. If a default judgment has been entered against you, an attorney will be able to represent you and help you demonstrate that the judgment should be vacated or set aside. 

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Last Modified: 07-09-2014 01:28 PM PDT

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