The Process of Setting Aside a Default Judgment
Have you been mailed or served with a judgment against you and you did not ever know there was a lawsuit against you? Chances are whoever sued you took your “default” – meaning you failed to respond to the lawsuit. But how could you respond if you never knew you were being sued in the first place? Well there is a solution.
If the court has entered a default judgment against you, a plaintiff can enforce it just like any other judgment. The default judgment also prevents a defendant from responding to the lawsuit.
In order to reverse the default, the defendant must file a motion (paperwork) with the court to set aside the default judgment. But the court will only grant the motion if you can present enough evidence to show one of the following:
- The default was entered by inadvertence, mistake, surprise, or excusable neglect;
- The defendant did not have “actual notice” in time to defend; or
- The default judgment is void on its face because the court lacked jurisdiction or the judgment was obtained by fraud.
While courts have wide discretion to set aside default judgments, a court will not set aside the default simply because the defendant forgot about the lawsuit, was too busy to respond, or could not afford an attorney. Instead, statutes and case law make it clear that there must be sufficient cause for the court to set aside a default judgment. That means it is up to you to show one of the three reasons above.
As an example, a defendant does not “actual notice” of a lawsuit when the evidence demonstrates that the defendant could not have had knowledge of the lawsuit. It is important to note that a valid Proof of Service of Summons is prima facie evidence that a defendant had actual notice or knowledge of a lawsuit. In order to rebut this presumption, the defendant must have evidence to support that they did not have knowledge of the lawsuit. A defendant will not have actual notice in time to defend when the Proof of Service is defective on its face. This often occurs when the Proof of Service of Summons was served at an incorrect address. Be aware – you cannot avoid actual notice by actively avoiding being served with the paperwork.
A motion to set aside a default must also be made timely. The motion to set aside a default judgment must be made within the statutory time frame. Therefore, if you believe a default judgment was improperly entered against you, it is very important to consult with an attorney immediately.
At Griswold LaSalle we have extensive litigation experience, including setting aside default judgments. Our office can help prepare your motion and convey evidence to the court to demonstrate that there is good cause to set aside your default judgment. If you are seeking help setting aside a default judgment, feel free to contact us.