South Carolina Motion to Vacate or Set Aside Entry of Default and Default Judgment Due to Mistake, Inadvertence, Surprise, or Excusable Neglect

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Multi-State
Control #:
US-01530BG
Format:
Word; 
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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;


" the presence of material issues of fact;


" the presence of a meritorious defense to the claim;


" the significance of the interests at stake, including, but not limited to, the amount of money involved;


" whether the failure to answer was intentional or willful or the result of conscious indifference;


" whether party or counsel bears responsibility for default; and


" the availability of less drastic sanctions.

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FAQ

Complete the Motion form. Explain the reason why you feel the judgment should be vacated. You may attach any supporting documents. NOTE: Now is not the time to explain your allegations or defenses of the case-only why the judgment should be vacated.

Under CCP § 473(b), the court may set aside a default and default judgment if the defendant asking for the set aside presents enough evidence to the court to demonstrate that the default was entered by inadvertence, mistake, surprise, or excusable neglect.

Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process, Fed.

You must file the Motion to Vacate within 180 days of learning about the judgment against you. It is best practice to file as soon as possible after learning of the judgment. 1. Fill out a Notice of Motion to Vacate Judgment and Declaration (Form SC-135).

A judgment lien in South Carolina will remain attached to the debtor's property (even if the property changes hands) for ten years.

A magistrate's judgment is valid for three years, whereas a circuit court judgment is valid for ten years.

Rule 55(a) provides that when a party fails to respond to a complaint, the clerk shall record an entry of default.

Removing A Judgment from Your Record There are only three ways in which a judgment can be made to go away: paying the debt, vacating the judgment or discharging the debt through bankruptcy.

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South Carolina Motion to Vacate or Set Aside Entry of Default and Default Judgment Due to Mistake, Inadvertence, Surprise, or Excusable Neglect