Sample Motion To Set Aside Default Judgment With Motion To Dismiss

State:
Multi-State
Control #:
US-01704BG
Format:
Word; 
Rich Text
Instant download

Description

In deciding whether to set aside a default judgment, courts seek to balance two competing interests: (1) the need to promote judicial economy; and (2) the need to preserve an individual's right to defend on the merits. Therefore, in addition to the requirement that defendant show that the judgment was entered through excusable neglect or another statutory ground, the court will consider a variety of factors, including:


the nature and extent of the prejudice which may be suffered by the non-defaulting party if the default is set aside;
2. the presence of material issues of fact;
3. the presence of a meritorious defense to the claim;
4. the significance of the interests at stake, including, but not limited to, the amount of money involved;
5. whether the failure to answer was intentional or willful or the result of conscious indifference;
6. whether party or counsel bears responsibility for default; and the availability of less drastic sanctions.

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FAQ

After a default judgment, the Plaintiff will try to collect the money you owe. The Plaintiff may be able to take money from your paycheck or bank account and put a lien on your property.

Hear this out loud PauseExamples of mistake, inadvertence, surprise, or excusable neglect include: ? Illness of defendant. Attorney's abandonment of client. Fraud of the plaintiff. The following instructions and forms assume that you are a defendant who is filing a motion to vacate a default judgment.

Hear this out loud PauseWithin 180 days after entry of a default judgment if the Defendant received written notice of the default judgment (See California Code of Civil Procedure §473.5)

Hear this out loud PauseYou can ask to cancel, or ?set aside? a default judgment. You have to have a good reason for not responding in 30 days. If the judgment is canceled, you'll get a chance to answer.

Hear this out loud PauseTo have the default judgment set aside the defendant must show the court that: ????there is a good reason why they did not file a defence within 28 days. they have a bona fide (genuine) defence. they applied to set aside default judgment as soon as they became aware of it.

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Sample Motion To Set Aside Default Judgment With Motion To Dismiss