How to get a default judgment set aside

May 9, 2017


How to get a default judgment set aside

1. You did not timely answer and now you have a default judgment against you. If a defendant does not answer or otherwise respond to a petition in a timely manner (usually within 30 days of service for a Missouri Circuit Court case), the plaintiff may take a default judgment. Missouri Supreme Court Rule 74.05(a) provides: (a) Entry of Default Judgment. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, upon proof of damages or entitlement to other relief, a judgment may be entered against the defaulting party. The entry of an interlocutory order of default is not a condition precedent to the entry of a default judgment. An interlocutor order of default is a ruling that you are in default. The next step is for the court to determine the amount of damages. Even if an interlocutory default has been taken, you can still demand a jury trial on the issue of damages.


2. “Good cause” and a “meritorious defense” Missouri Supreme Court Rule 74.05(d): (d) When Set Aside. Upon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside. The motion shall be made within a reasonable time not to exceed one year after the entry of the default judgment. “Good cause” includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process. An order setting aside an interlocutory order of default or a default judgment may be conditioned on such terms as are just, including a requirement that the party in default pay reasonable attorney’s fees and expenses incurred as a result of the default by the party who requested the default. This means you need to file a motion, preferably verified by affidavit, show a good reason why you did not timely answer the petition and stating facts constituting a defense to the allegations against you. You may also testify.


3. Relief from a void judgment. If a default has been taken against you, go to the courthouse and ask to see the case file. Look at the server’s return of service. If a special process server was appointed to serve the summons, make sure the individual who was appointed was the same person who signed the return. “A party who elects to use a special process server does so at his or her own risk and bears a heavy burden of showing that every procedural requirement for service of process via a `specially appointed’ individual has been met.” Walker v. Gruner, 875 S.W.2d 587, 588 (Mo.App. E.D.1994). “A return must show on its face that every requisite of the rule has been complied with and may not be aided by intendments or presumptions.” See v. Nesler, 692 S.W.2d 7, 8 (Mo.App. E.D.1985). “The special process server’s return, unlike a sheriff’s, is not presumed conclusive.” Taylor v. Taylor, 742 S.W.2d 630 (Mo.App. E.D.1988).


Read the Default judgment rule.


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