Delaware Motion to Set Aside Entry of Default and Default Judgment

State:
Multi-State
Control #:
US-01704BG
Format:
Word; 
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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

An entry of default is the first step to obtaining a default judgment against a party, and allows you to proceed in the action without further notice or input from the opposing party. An entry of default can come in two forms, an entry by the clerk or an entry by the judge.

The process for setting aside default judgment You will need to make an application to the court regardless of whether consent is obtained, but seeking consent may mean that the claimant does not oppose the application, potentially reducing the costs of the application.

A default judgment can be entered by a clerk or by a judge. In simple civil cases and where the defendant is neither a minor nor an incompetent person, the clerk, with an affidavit showing the amount due, can enter the judgment for that amount.

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.

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.

Rule 12. Attorneys of record; withdrawal. (i) Original signature by Delaware attorney. ?Except in the case of a party appearing pro se, all papers filed with the Court shall be signed by an attorney who is an active member of the Bar of this Court and who maintains an office in Delaware for the practice of law.

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Delaware Motion to Set Aside Entry of Default and Default Judgment