Motion to Set Aside Default or Judgment

Motion to Set Aside Default or Judgment

A Motion to Set Aside Default or Judgment is used to ask the court to set aside or "undo" a default or judgment or final order in a case, and to allow the case to move ahead as if the default or judgment had not been made.

 

Reasons to set aside the default judgment

Utah Rule of Civil Procedure 55(b) and Utah Rule of Civil Procedure 60(b) specify the reasons a default or judgment may be set aside:

• mistake, inadvertence, surprise, or excusable neglect;
• newly discovered evidence which could not have been discovered in time to move for a new trial under Rule 59(b);
• fraud, misrepresentation or other misconduct of the other party;
• the judgment is void;
• the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
• any other reason justifying relief from the operation of the judgment.

Examples of common reasons include:

• Paperwork filed contained mistakes or was filed incorrectly
• The court did not have jurisdiction over the matter
• The judgment has already been paid
• The party is a victim of identity theft
• The party was not served properly
• The statute of limitations for the action has passed

 

Deadlines

A party must make the motion within a "reasonable time" after the default or judgment. The judge decides what a reasonable time is, and it will depend on the circumstances in the case. A party should clearly explain why the time in which they filed the motion is reasonable.

In addition to the reasonable time requirement, a party asking to set aside the default or judgment for one of the reasons listed below must do so within three months of the default or judgment:

• mistake, inadvertence, surprise, or excusable neglect
• newly discovered evidence
• fraud, misrepresentation or other misconduct of the other party

It is important to act promptly. If the judge finds that the motion was not made within a reasonable time, s/he can deny it, even if the reason for the request is a valid one.

 

Meritorious defense

Even when a party has a valid reason to ask to set aside the default or judgment under the court rule, and even if they make the motion by the deadline, in many cases the party must also show that they have a "meritorious" or good defense in the case. The party must tell the court what things they disagree with in the complaint or petition.

If, for example, a default judgment is set aside, the party must show to the court why the proposed answer contains a defense that is entitled to be tried. See Erickson v. Schenkers Int'l Forwarders, Inc., 882 P.2d 1147 (Utah 1994).

 

Will Your Motion be Decided by a Judge or Commissioner?

Judges may rule on all motions in all types of cases. However, in Judicial Districts 1, 2, 3 and 4, commissioners are assigned to hear most matters in divorce cases and several other types of family law cases. Motions decided by a judge and motions decided by a commissioner follow different procedures. If you are not sure whether your case is assigned to a judge or commissioner, find out. Call the court, or look at the caption of the complaint or petition. If a commissioner's name has been listed in the caption, the motion likely will be decided by a commissioner.

Motions decided by a judge are governed by URCP 7. Motions decided by a commissioner are governed by URCP 101.

See our Motions page for more information about the difference in procedures and timelines depending on who is deciding the motion.

 

Military service members

If the case involves someone on active military duty, special protections apply under the federal Servicemembers Civil Relief Act. See our Lawsuits Involving Military Service Members web page for more information

 

Delaying enforcement of the judgment

A party can ask the court to delay or "stay" enforcement of the judgment while the Motion to Set Aside Default or Judgment is being considered by filing a Motion to Delay (Stay) Enforcement of the Judgment. You can file this motion at the same time as the Motion to Set Aside Default or Judgment.

If granted by the court, the stay remains in effect until the judge makes a decision on the Motion to Set Aside Judgment. During that time, the other party cannot try to enforce the judgment until that matter has been decided.

See the Motion to Delay (Stay) Enforcement of the Judgment web page for more information and forms.

 

After the motion is decided

If the motion to set aside default or judgment is granted, the parties then proceed through the steps in the case as if the default or judgment had not been granted. For example:

• If the judgment was a default, the defendant/respondent may be given an opportunity to answer the complaint or petition.
• If the court finds the judgment was already satisfied, the case may be dismissed because it has already been completed.
• If the court finds service was improper, the court may order the plaintiff/petitioner to serve the defendant/respondent properly.
• If the motion to set aside default or judgment is not granted, the party who won the original judgment can now enforce the judgment.

If the motion to set aside default or judgment is not granted, the party who won the original judgment can now enforce the judgment.

See our How to collect a judgment web page for more information about the ways a creditor can enforce a judgment for money.

Either party can decide to appeal the decision about the Motion to Set Aside Default or Judgment if they believe the judge made a legal mistake. See the Appeals web page for information about the appeals process.

 

Forms

 

Information about filing documents in existing cases by email

 

The forms you need depend on your case. What is your case about?