To file a motion to set aside a default judgment, you draft a written motion asking the court to vacate the judgment, attach a sworn declaration and supporting evidence, file it with the clerk of the court that entered the judgment, and serve a copy on the opposing party. To win it, you have to show two things: a legally recognized reason the default happened, and a real defense to the underlying lawsuit. Move quickly. Deadlines are short, and every week you wait weakens the motion even when you’re still technically within the time limit.
First, Confirm Which Stage Your Case Is At
The standard for relief depends on whether the court has only entered a default or has actually entered a default judgment. An entry of default is a clerk’s notation that you failed to respond in time. A default judgment is the later court order that awards the plaintiff money or other relief.1Legal Information Institute. Federal Rules of Civil Procedure Rule 55 – Default; Default Judgment
Setting aside an entry of default requires only “good cause.” Setting aside a default judgment is harder and must meet the stricter standards of Rule 60(b).1Legal Information Institute. Federal Rules of Civil Procedure Rule 55 – Default; Default Judgment Check the docket or call the clerk before you start drafting so you know which rule and which standard you’re writing to.
Identify Your Ground Under Rule 60(b)
Federal Rule 60(b) lists six grounds for vacating a final judgment. Most motions to set aside a default judgment rest on one of the first four.2Legal Information Institute. Federal Rules of Civil Procedure Rule 60 – Relief from a Judgment or Order
- Mistake or excusable neglect. You had a reasonable explanation for missing the deadline, such as serious illness, a family emergency, or an attorney who failed you. Simple forgetfulness or being too busy generally won’t qualify. Courts ask whether a reasonably careful person in your situation would have done the same thing.
- Newly discovered evidence you couldn’t have found in time to respond, even with diligent effort.
- Fraud or misrepresentation by the plaintiff, such as fabricated documents or false statements about service.
- A void judgment. The most common version is improper service. If you were never properly notified of the lawsuit, the court may not have had jurisdiction over you.
- A satisfied or discharged judgment, or one based on an earlier ruling that was later reversed.
- The catchall for extraordinary circumstances. The Supreme Court has emphasized this provision is “available only in narrow circumstances” and cannot substitute for the other five grounds.
State courts follow similar frameworks, but the language and specific grounds vary. Check the rules of the court that entered the judgment.
File Within the Deadline
Every Rule 60(b) motion must be filed within a “reasonable time.” Motions based on mistake or excusable neglect, newly discovered evidence, or fraud have a hard outer limit of one year from the date the judgment was entered.2Legal Information Institute. Federal Rules of Civil Procedure Rule 60 – Relief from a Judgment or Order That year is not generous. Courts have found that waiting several months, even within the one-year window, can be unreasonable if you knew about the judgment early on.
Motions based on a void judgment, a satisfied judgment, or extraordinary circumstances have no fixed outer deadline, but they still have to be brought within a reasonable time. State deadlines differ. Some states cap the window at six months; others allow up to two years for certain grounds. File as soon as you learn of the judgment regardless of which ground you’re using.
Prepare a Meritorious Defense
A valid reason for the default isn’t enough on its own. You also have to show a “meritorious defense” — a plausible argument for why you shouldn’t lose the case if it were actually litigated. You don’t need to prove you’d win at trial. You need to show enough substance that the case deserves to be decided on the merits.
In a debt collection case, a meritorious defense might be that the debt is past the statute of limitations, the amount is wrong, you already made payments the plaintiff didn’t credit, or the plaintiff has the wrong person. In a personal injury case, it might be that you weren’t at fault or that the damages are inflated. Present specific facts, not a general denial. Vague claims that “I have a defense” without supporting detail rarely succeed.
Draft the Motion and Assemble Supporting Documents
The motion document itself should include the case name, case number, and court, plus a clear explanation of two things: why the default happened, and what your defense is on the merits.
Tie your facts directly to a Rule 60(b) ground. If you’re claiming excusable neglect because of a medical emergency, say so plainly and connect it to the specific dates you missed. If you’re arguing improper service, explain exactly what went wrong: you moved before the lawsuit was filed, the summons was left with someone who doesn’t live at your address, or you never received it at all.
Supporting documents are what let the court act on your argument. Most motions include:
- A sworn declaration from you, giving a detailed first-person account of the circumstances, signed under penalty of perjury.
- Declarations from witnesses who can corroborate your account, such as a doctor confirming a hospitalization or a landlord confirming you moved.
- Evidence related to service if you’re challenging it: a lease showing a different address, postal records, or an unsigned return receipt.
- Evidence supporting your defense on the merits: contracts, payment records, correspondence.
- A proposed answer to the original complaint. Some courts require or expect this, and it shows the court you’re serious about defending the case.
File and Serve the Motion
File the motion and all attachments with the clerk of the court that entered the judgment. Most federal courts and many state courts allow electronic filing; some still accept in-person or mail filing. In federal court there is generally no separate fee for a motion in an existing case. State courts sometimes charge fees roughly in the $35 to $75 range.
After filing, serve a copy of everything on the opposing party. In federal court, Rule 5 governs service of papers after the initial complaint and permits mail, personal delivery, or electronic service where the court allows it.3Legal Information Institute. Federal Rules of Civil Procedure Rule 5 File a certificate of service with the court confirming when and how you delivered the papers. If you filed electronically through the court’s system and the other party is registered for electronic notice, that filing satisfies service and no separate certificate is needed.
Ask for a Stay of Collection
Filing the motion does not automatically stop collection. Wage garnishment, bank levies, and property liens can continue while your motion is pending unless the court enters a separate order pausing enforcement.
In federal court, Rule 62 provides an automatic 30-day stay of execution after judgment is entered.4Legal Information Institute. Federal Rules of Civil Procedure Rule 62 – Stay of Proceedings to Enforce a Judgment After that, you can request a stay by posting a bond or other security the court approves, typically in the amount of the judgment plus estimated interest and costs. If you can’t afford a bond, you can still ask the court for a discretionary stay, but there’s no guarantee. State stay rules vary. Some states offer their own automatic stay periods; others require a bond from day one. If collection is imminent, deal with the stay before you finish perfecting the motion itself.
The Hearing and What Comes After
Once you file, the opposing party gets time to respond. The plaintiff will typically argue that your reason for defaulting isn’t good enough, that your defense lacks merit, or that reopening the case would prejudice them. On prejudice, courts generally require more than “we’d lose our default”; the plaintiff has to show real harm, like lost evidence or unavailable witnesses.
The court then holds a hearing. The judge reviews the written submissions and may ask questions. This is where the quality of your documents matters. A well-documented motion with specific facts and attached evidence is far more persuasive than a vague affidavit. Judges have broad discretion and generally favor resolving cases on the actual merits when the defendant’s explanation is credible and the plaintiff isn’t meaningfully harmed by reopening the case.
If the judge grants the motion, the default judgment is vacated and the case restarts. You’ll need to file a formal answer to the original complaint within the deadline the court sets, and the case proceeds through normal litigation.1Legal Information Institute. Federal Rules of Civil Procedure Rule 55 – Default; Default Judgment If the judge denies the motion, the judgment stands and the plaintiff can proceed with collection. An appeal is possible but reviewed under the “abuse of discretion” standard, which is a high bar.