Setting aside a default judgment

Before filing a motion to set aside a default judgment, you should try to talk to an attorney. By filing the motion to set aside, you may be giving the court the authority and opportunity to award your landlord additional rent, additional damages, and/or the right to evict you, even if your landlord did not have the right to do so when it obtained the default judgment.

Default judgments are disfavored by courts since the losing party never had a chance to tell his/her side of the story. Under certain circumstances, if your landlord obtains a default judgment against you for rent, damages, or possession of your unit, you may wish to ask the court to set aside the default judgment.

Grounds for Setting Aside Default Judgment

You must have a good reason for not appearing in court, this is called “good cause.” Good cause can include a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process. You may have good cause if you were hospitalized on the court date, were involved in a car accident on the way to court, were never served with the summons, or were served improperly. If you have proof of your good reason for not appearing in court, attach a copy of your proof to your motion.

You must also have a “meritorious defense.” A meritorious defense is one that you could have presented to the court which may have affected the outcome of the case. You may have a meritorious defense if you do not owe some or all of the money or rent claimed by your landlord and/or you did not violate the lease.

Filing the Motion

In order to request that the court set aside the default judgment, in most cases you must file a written motion with the court requesting that the default judgment be set aside. Bring the original motion and two copies of the motion with you to court. One copy is for your records and the other you must immediately give to your landlord.

When you file the motion with the court, you must ask the court to set the motion for a hearing. Request that the hearing be held as soon as possible. Once the court gives a hearing date and time, prepare a notice of hearing to give to your landlord that states the date, time, and location of the hearing. File the notice of hearing with the court and make sure you get two copies of the notice of hearing. One copy is for your records and the other you must immediately give to your landlord.

If your landlord obtained a default judgment for possession of the unit authorizing eviction, filing a motion to set aside a default judgment will not automatically stop your landlord from requesting that the sheriff evict you once 10 days have passed since the date of the judgment. 

This is why it may be important for the court to hear your motion as soon as possible. If the court cannot hear your motion before the 10 days will pass, ask the judge to temporarily prevent or “stay” the eviction, pending the hearing of your motion. If the judge agrees to do so, the judge will write out an Order “staying” an eviction. 

Immediately, you must give your landlord (or if applicable, the attorney for your landlord) a copy of the motion, a copy of the notice of hearing, and a copy of any Orders the judge signs. You must serve these documents because your landlord has the right to respond to your motion and the right to be present for the hearing. If the court agrees to set aside the default judgment, the court will schedule a new court date, probably a date and time for a trial.