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How to Make Motion to Set Aside — Ultimate Guide

Chloe Meltzer | December 07, 2023

Chloe-Meltzer
Legal Expert
Chloe Meltzer, MA

Chloe Meltzer is an experienced content writer specializing in legal content creation. She holds a degree in English Literature from Arizona State University, complemented by a Master’s in Marketing from California Polytechnic State University-San Luis Obispo.

Edited by Hannah Locklear

Hannah Locklear
Editor at SoloSuit
Hannah Locklear, BA

Hannah Locklear is SoloSuit’s Marketing and Impact Manager. With an educational background in Linguistics, Spanish, and International Development from Brigham Young University, Hannah has also worked as a legal support specialist for several years.

Summary: If a default judgment has been entered against you, you might feel like your situation is hopeless. But if you were never served and never appeared in court, you might have a way out. Ask the judge to set aside the judgment. Learn how to ask the court to cancel a default judgment.

If you have discovered that a default judgment was entered against you, then you may have been sued without ever even being aware. If you were never served and never appeared in court, then you can attempt to make a motion to have your judgment set aside.

Find Out Why You Have a Default Judgment Against You

When a default judgment has been brought against you, it means that a court order has been made without you. In this case, you would be considered the “respondent.”

There are two reasons why you may have a default judgment against you:

  1. You were served and did not file an answer by the deadline.
  2. You filed an answer and were given notice of a hearing, but you never showed up.

Avoid a default judgment by filing a response with SoloSuit.

Ask the Court to Cancel the Default Judgment

If you are the respondent in a default judgment case, you may feel that all hope is lost. Although you may have a default judgment against you, there are options. You do have the ability to ask the judge to set aside a default judgment made without you. This is called canceling the judgment.

If you would like to ask the judge to cancel a default judgment against you, you need to go through the following steps.

File a Motion to Set Aside the Default Judgment

Ensure that you file a motion to set aside default judgment by the deadline. If you do not, then you will automatically lose your case and lose your chance.

Stick to the Deadline

If you have decided to file a Motion to Set Aside Default Judgment, then you must file this within 30 days of the date that the default judgment was signed by the judge. There is a chance that this can vary based on state law, so it is important to check with your local guidelines.

Explain Your Reasoning

Life happens, and often if you present a solid case to the judge, they may agree to your motion to set aside. Be sure to show the reason why you did not file an answer or show up to the hearing. Typically the only reasoning you have to stand on would be lack of notice, or if there was a mistake, meaning one of the following:

  • You did not file an answer because you were not properly served with a citation.
  • You filed an answer but did not come to a hearing due to not receiving proper notice of the hearing.
  • There was an accident or mistake which prevented you from filing. This is not an intentional or conscious indifference.
  • There was an accident or mistake after your filing, which prevented you from coming to the hearing. This is not an intentional or conscious indifference.

Make a Solid Defense

If you are asking the judge to set aside a default judgment and it is due to an accident or mistake. Then you must also show that you have a good defense to the case. If you do not have a good reason, then the judge most likely will not rule in your favor. You should also be able to prove that canceling the default judgment will not cause delay or harm to the other party involved.

Make the right defense the right way with SoloSuit.

Know the Exceptions to Default Judgment Deadlines

Although the court is quite strict regarding default judgment deadlines, there are a few exceptions.

  1. If you originally learn about the default judgment more than 20 days after it was signed by the judge, then your 30-day deadline to file the Motion to Set Aside Default Judgment begins on the date that you receive the notice of the default judgment. This would be the date that you received it from the clerk or the date you found out about the default judgment. The starting date is whichever happened first.

    If this exception applies to you, then your 30-day deadline to file the Motion to Set Aside Default Judgment cannot begin more than 90 days after the date that default judgment was signed by the judge.

    Ensure that the latest you file a Motion to Set Aside Default Judgment is 120 days after the date that your default judgment was signed by the judge.

  1. If you were served by publication, then you will have two years to ask for a new trial. These two years begin the date of the default judgment.
  2. If you are a military member and you were on active duty when the default judgment was signed by the judge, then you will have additional time. It is recommended to talk to a lawyer in this situation.

If you do not file your Motion to Set Aside Default Judgment within 30 days of the date of the default judgment, then it is recommended to speak with a lawyer.

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Make a Motion to Set Aside a Default Judgement

Schedule a Hearing

Call the clerk's office and ask to schedule a hearing for a Motion to Set Aside Default Judgment. Ensure that the hearing date is scheduled far enough in advance so that the other side of the judgment can receive a copy of this at least 3 days before the hearing date.

Turn in the Motion Form

One of the most essential parts of asking the court to set aside your default judgment is to turn in your completed Motion to Set Aside Default Judgment and Notice of Hearing form.

This form should be turned in at the clerk's office, and you should ask for a file-stamped copy. You will need one for yourself, and one for the side that filed the judgment against you.

Send a File-Stamped Copy

The next step is to send a file-stamped copy of the motion to the side that filed the judgment against you. This should be sent on the same day that it is filed. If the other side works with a lawyer, it should be sent to the lawyer directly. It can be sent by:

  • Fax
  • Email
  • FedEx
  • UPS
  • Personal delivery
  • Certified mail (ask for return receipt requested)

Keep proof of your motion and bring this proof to your hearing.

Attend the Hearing

You must attend the hearing and be ready to explain to the judge why you believe the default judgment should be set aside. Be sure to bring:

  • Proof that you sent the Motion to Set Aside Default Judgment and Notice of Hearing to the person that brought the judgment against you.
  • The Order on Motion to Set Aside Default Judgment. The judge needs to sign this.

Your Case May or May Not Be Accepted

Even if you go through all of the above steps, the judge may not agree to set aside the default judgment. All you can do is plead your case, bring forth the evidence, and hope for the best.

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.

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