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

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US-01530BG
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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

You file a motion by completing the form and filing it with the same court that signed the default entry or default judgment. There is a $20 motion fee for filing a motion to set aside default.

A court may enter default, and ultimately default judgment, against a party that fails to plead or otherwise defend against a claim for affirmative relief that has been asserted against that party. MCR 2.603.

South Dakota permits a plaintiff to recover damages so long as their fault was ?slight." Flipping this around, a defendant's fault must be ?gross" (or great) for a defendant to be liable for a plaintiff's injuries. Lawyers call this ?slight-gross negligence," and it can limit a plaintiff's ability to recover.

If you missed a court hearing on a blight ticket and a blight judgment was entered against you by default, you may file a motion to set aside the default judgment. You must file the motion within 21 days of the hearing and pay certain filing fees and costs.

Many mortgages in South Dakota have a provision that requires the lender to send a breach letter if you fall behind in payments. This notice tells you that the loan is in default. If you don't cure the default, the lender can accelerate the loan (call it due) and go ahead with the foreclosure.

A 6.500 Motion is for defendants who have used all their state appeals, missed filing deadlines, and cannot appeal in the federal court system. If a Motion for Relief from Judgment is granted, the conviction is removed from a person's criminal history, as if it never happened.

A motion must be made in writing, (unless made during a hearing or at trial), and must set forth with particularity the grounds on which it is brought, and the relief or order sought. FRCP 7(b)(1).

SOUTH DAKOTA A judgment becomes a lien on real property for a period of 10 years. S.D. Codified Laws § 15-16-7. A judgment may be renewed for an additional period of ten years.

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