Setting Aside A Civil Default Judgment

Learn what to do if you’ve discovered that a “default judgment” was entered against you, which can happen even if you didn’t know you’d been sued and never appeared in court.


Overview

To start a civil case, the “plaintiff” (the party suing) files a “complaint” with the court. A “complaint” describes what the plaintiff wants and identifies the “defendant” (the party being sued). The plaintiff also has the court issue a “summons” that notifies the defendant that he is being sued and needs to defend himself.

The summons and complaint must be “served” (personally delivered by a process server) to the defendant. If the plaintiff is unable to serve the defendant (or the defendant is avoiding service), she can ask the court to serve by publishing a notice in a legal newspaper.

If you have been served with a summons and complaint, you typically have twenty days to file a response with the court. If you fail to file with the court before your deadline, the plaintiff can ask the court for a “default judgment.” A “default judgment” is a money judgment awarded against you simply because you failed to appear in the case and defend yourself.

If the court has entered a default judgment against you, the plaintiff can collect it like any other judgment. That means she can try to garnish your wages or attach your bank accounts, among other things.

If you do not think the default judgment was appropriately entered against you, you must file a motion with the court asking the judge to “set aside” (void or nullify) the judgment. If the judge grants your motion, the case starts back up again. You can then appear in the case and assert whatever defense you have to plaintiff’s claims.

To learn more about civil cases generally, click to explore Lawsuits for Money.

To learn more about judgments and collection generally, click to explore Judgments for Money.


Q&A – Setting Aside Default Judgments


In what situations can a judge set aside a default judgment?

The court’s rules state the circumstances in which a judge can set aside a default judgment. (NRCP 60(b)-(c); JCRCP 60(b)-(c).) A judge can set aside a default judgment for the following reasons, among others:

  • Mistake, inadvertence, surprise, or excusable neglect of the party who failed to defend himself in the case
  • Fraud, misrepresentation, or other misconduct by the party who filed the case
  • The judgment has been satisfied, released, or discharged
  • The summons and complaint were never personally served to the defendant who judgment was entered against

So to set aside your default judgment, the judge must agree that one of these reasons addresses your particular situation and that your circumstances warrant the judgment being set aside.

Is there a deadline or time limit for me to ask the judge to set aside the default judgment against me?

Your deadline for filing a motion to set aside the default depends on the specific reason you are asking the judge to set the judgment aside.

If you are asking the judge to set aside your default judgment:

  • Because of your mistake, inadvertence, surprise, or excusable neglect, you must file your motion within six months after service of written notice of entry of the judgment.
  • Because of the other side’s fraud, misrepresentation, or other misconduct, you must file your motion within six months after service of written notice of entry of the judgment.
  • Because the judgment has been satisfied, release, or discharged, you must file your motion within a reasonable time.
  • Because you were never personally served with the summons and complaint, you must file your motion within six months after service of written notice of entry of the judgment.

FYI! After a party obtains a judgment, they must prepare a document called a Notice of Entry. They attach a copy of the judgment to the Notice of Entry, file it with the court, and mail it to all parties in the case to give them notice of the default judgment. That’s the “written notice of entry” referred to above.

Do I need to have a defense to the plaintiff’s claims in the case to ask the judge to set aside the default judgment?

Technically, you do not need to have a legal defense to the claims plaintiff makes in the case to file a motion to set aside a default judgment. But it helps if you do for a couple of reasons:

  • The judge might be more likely to set aside the default judgment if she sees that you have a good defense to the plaintiff’s claims that might allow you to avoid liability altogether.
  • If you do not have a defense to plaintiff’s claims, you could end up in the same position you are in now (or worse).

FYI! If the judge sets aside your default judgment, the case starts back up again. If you don’t have a defense, the final result could ultimately be the same – you could lose and have a judgment against you. But the judgment could actually be for more money! In many cases the plaintiff can force you to pay her attorney’s fees. So the more you fight the case, the more fees you could end up paying if you lose.

What papers do I file with the court to ask the judge to set aside my default judgment?

To ask the judge to set aside your default judgment, you must file a “motion” (a formal written request) with the court.

The Self-Help Center has two form Motions to Set Aside Default Judgment that are available for free at the center or can be downloaded on your computer. Which motion you use depends on the reason you are asking the judge to set aside you default.

  • If you were never served with the summons and complaint in the case, use this motion:

JUSTICE COURT MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT (NEVER SERVED W/ SUMMONS AND COMPLAINT) 
Pdf Nonfillable | Instructions 

The Self-Help Center does not currently have a district court version of this form. You can use the justice court version of this form and modify it for the district court, or you can type your own motion using the justice court version as a guide.

  • If you were served with the summons and complaint and are asking the judge to set aside your default because of your mistake, inadvertence, surprise, or excusable neglect, or because of the fraud or misrepresentation of the other side, use this motion:

JUSTICE COURT MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT (SERVED W/ SUMMONS AND COMPLAINT) 
Pdf Nonfillable | Instructions 

The Self-Help Center does not currently have a district court version of this form. You can use the justice court version of this form and modify it for the district court, or you can type your own motion using the justice court version as a guide.

To prepare and file your motion, follow these steps:

 Get a copy of your case file from the court clerk. You will need information from your case to complete your motion. Be prepared to pay for the copies from the clerk’s office. You will probably be charged between $0.30 to $0.50 for each page.

 Download and read the instructions. The instructions describe the different parts of the forms and give directions on filing them out.

 Fill out your forms. For tips on filing out legal forms, click to visit Basics of Court Forms and Filing.

 If you are filing in the district court or a justice court other than Las Vegas, make two copies of your completed forms. If you are filing in the Las Vegas Justice Court, you do not need copies to file. But you do need an e-mail address. You will receive your filed document from the court by e-mail. You can then make the copies you need.

 Fill out an application to waive the filing fee if necessary. When you file your motion, the court clerk will charge you a filing fee if it is your first filing in the case. If you cannot afford the filing fee, you must submit an application to waive the fee.

JUSTICE COURT APPLICATION TO WAIVE FILING FEE (OTHER THAN LAS VEGAS) 
Pdf Fillable | Pdf Nonfillable 

JUSTICE COURT APPLICATION TO WAIVE FILING FEE (LAS VEGAS ONLY) 
Pdf Fillable 

DISTRICT COURT APPLICATION TO WAIVE FILING FEE 

AUTOMATED FORMS INTERVIEW AVAILABLE!

There is an automated interview for applicants filling out the District Court Fee Waiver. This interview will complete the fee waiver forms for you after you answer a series of questions. To use the interview, click here and select the "Clark County District Court Fee Waiver" interview. At the end of the interview, you will have to print your forms, sign them, and file them. This interview will only generate the District Court Fee Waiver forms.

Pdf Fillable | Pdf Nonfillable 

For more information, click to visit Filing Fees and Waivers.

 Take your motion, copies, and fee waiver application (if necessary) to the court where your default judgment was issued. For court location and contact information, click to visit Find My Court.

 Give your motion, copies, and fee waiver application (if necessary) to the court clerk. The clerk will stamp your copies and insert a hearing date on your Notice of Motion. If you are filing in the Las Vegas Justice Court, you will receive your filed document and hearing date by e-mail.

If you are asking the court to waive the filing fee, it may take the court several days to file your motion and assign a hearing date if your fee waiver is approved. Once that is done, you must return to the court and pick up your copies. Ask the court clerk how you will be notified your motion has been filed.

 Mail a copy of your filed motion (with the hearing date) to the plaintiff’s attorney (or to the plaintiff directly if she has no attorney).

What happens after I file my motion and mail it to the plaintiff?

When you filed your motion, the court clerk inserted a date and time for a hearing on your Notice of Motion. Be prepared to attend the hearing and make your argument to the judge about why the default judgment should be set aside. For information and tips, click to visit Going to Court.

When the plaintiff receives the copy of the motion you mailed to her, she can file an opposition with the court. You should receive her opposition in the mail. In the opposition, the plaintiff will explain to the judge why she believes the default judgment should not be set aside. You have the right to file a reply to plaintiff’s opposition if you think she makes some material misstatement or faulty argument that you believe needs to be corrected.

What should I expect at the hearing on my motion?

At the hearing, the judge will probably allow both parties to make a statement describing their position. Because you filed the motion and made the request to set the default judgment aside, the judge might ask you to go first. Depending on your situation, you will explain to the judge that you were never served with the summons and complaint or, if you were served, why you failed to do anything to defend yourself. If you have a defense in the case, you might also want to describe your defense. The judge will probably ask you and the other side questions. When she is satisfied she understands the facts and arguments, she may make a ruling on your motion (granting or denying it) or she may take the case “under advisement” and issue a decision later.

Should I take an order to hearing for the judge to sign?

Yes. Remember that if the judge grants your motion, your wages may continue to be garnished and the money already garnished will not be returned unless you property file and serve an order signed by the judge.

The motion and instructions that you previously used to file with the court also contain instructions and forms for an order. Review Part II of the instructions and fill out the forms as directed.

Be sure to take the order to your hearing with you. If the judge grants your motion, ask her if she will sign it.

Once the order is signed, you must prepare, file, and serve the Notice of Entry of Order as instructed.

If the judge grants my motion, what happens?

If the judge grants your motion and sets aside the default judgment, any money taken from you should be returned (unless the judge orders something different).

The case is not over though. Once the judgment is set aside, the case starts up again. If you do not file an answer with the court to defend against plaintiff’s complaint, you could again be defaulted and another default judgment could be entered against you.

To learn how to file an answer, click to visit Responding to a Complaint if You’ve Been Sued.