There are no fixed standards to determine the type of mistake, surprise, or excusable neglect that would warrant the setting aside of a default judgment. The court's decision to set aside a judgment on any of these grounds turns upon the unique factual background of each particular case. However, mistake, inadvertence, and excusable neglect that warrants relief from a default judgment require some justification for an error beyond mere carelessness or ignorance of the law of the party or his or her attorney.
California Affidavit Supporting Notice of Motion for Vacation or Setting Aside of Default Judgment due to Mistake, Inadvertence, Surprise, or Excusable Neglect
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How to fill out Affidavit Supporting Notice Of Motion For Vacation Or Setting Aside Of Default Judgment Due To Mistake, Inadvertence, Surprise, Or Excusable Neglect?
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FAQ
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.
These grounds include: Inadvertence, Surprise, Mistake, or Excusable Neglect (CCP § 473(b)): ... Party not given actual notice in time to defend (CCP § 473.5): ... Party not given actual notice in time to defend action brought by a debt buyer (Civ § 1788.61): ... Void Judgments (CCP § 473(d)):
The court must set aside a default judgment if you: have paid the whole amount owed (including any interest and costs) before the date the creditor entered judgment; sent back the acknowledgment of service form within the time limit; put in a defence within the time limit; or.
Some jurisdictions have their own schemes for deciding when a judgment should be set aside due to excusable neglect. For example, in California, a reasonable mistake of misconception or mistake of law can be considered excusable neglect and provide relief from judgment.
Application to set aside ex-parte decree: It can be entertained on the two grounds: Where summon was not served. Defendant was prevented from appearing without sufficient cause.
Examples 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.
Typically, the default process begins when the defendant has not responded to a properly served summons and complaint. When this happens, a defendant is ?in default,? and the plaintiff can take the first step to obtain an entry of default against the defendant. (See Cal. Rules of Court, rule 3.110.)
If you never knew you were being sued, and motion for default judgment is filed against you, you should respond with a Motion to Vacate Judgment, also known as a Motion to Set Aside Judgment.
