Undoing a Default Already Entered
Setting aside is an ordinary application with one unusual feature: it succeeds a great deal more often than the people making it tend to expect, provided that it arrives quickly and brings a properly drafted defense along with it.
The rule in short
An application to set aside a default generally requires the applicant to show a defense with a real prospect of success, to explain the failure that produced the default, and to have applied promptly. Some defaults are set aside as of right, most commonly where service was defective. Conditions such as costs and payment into an account are frequently attached.
Defaults are entered frequently and set aside frequently, and the applications that fail are usually the ones that arrived late or arrived without a defense attached.
The two routes
As of right, where service was defective. Where the party was never properly served, many systems set aside the default without any discretionary assessment at all.
Which makes service the first question. Method, address, recipient and proof each deserve checking before anything else is considered, per defective service and what cures it.
Discretionary, in every other case. Where service was good, the application is decided on stated criteria and on the overall justice of the situation.
The tests differ by stage. Setting aside an entry of default is generally easier than setting aside a judgment on it, per what a default actually is.
Some systems distinguish void from voidable. A judgment entered without authority is treated differently from one entered irregularly.
Time limits apply. Applications are usually subject to a period running from the judgment or from knowledge of it.
Both routes can be argued. Pleading defective service and, alternatively, discretionary grounds is standard and sensible.
Evidence is required either way. A witness statement setting out the facts, rather than assertions in a covering letter.
Consent is possible. Opponents occasionally agree, particularly early on and particularly where the costs are offered.
A limited application is available. Where only part of a judgment is objectionable, applying to set aside that part rather than all of it is frequently the more realistic course.
What the application needs
A draft defense. The single most important element, showing what the party would have said had they responded in time.
A real prospect of success. The defense has to be arguable rather than merely asserted, and evidence supporting it helps considerably.
An explanation of the failure. Why nothing was filed, factually and with dates, without dwelling on it.
The date of knowledge. When the default came to light, which anchors the promptness assessment.
An account of what followed. The steps taken between discovery and application, per how fast to move once it is noticed.
An answer on prejudice. What the other side has lost, which for a recent default is usually nothing.
An offer on costs. Volunteering the costs of the default and the application removes a common objection.
A proposed timetable. What happens next if the application succeeds, so that relief is easy to grant.
Supporting evidence. From somebody who can speak to both the failure and the substance of the defense.
| Ground | Test | Prospect |
|---|---|---|
| Defective service | Usually as of right | Strong |
| Prompt with a good defense | Discretionary | Strong |
| Prompt with a weak defense | Discretionary | Mixed |
| Delayed with a good defense | Discretionary | Mixed |
| Delayed with a weak defense | Discretionary | Poor |
What the decision turns on
The strength of the defense. A strong defense carries an application that a weak explanation would otherwise sink.
Promptness. The interval between knowledge and application, which is examined in every one of these.
Whether service was good. The threshold question, and frequently the whole answer.
The length of time since the default. Old judgments attract more finality, particularly where third parties have relied on them.
Prejudice to the other side. Assessed on what was actually lost rather than on the loss of the judgment.
The conduct of the applicant. Deliberate disregard is treated quite differently from an administrative failure.
Whether enforcement has begun. Steps already taken complicate matters and may need addressing separately.
The compliance history. A first failure reads very differently from a pattern.
The overall justice of it. Which absorbs anything the specific factors do not capture.
Applications to set aside are decided largely on what the party would have said. An application describing an intention to defend, without a draft, gives the decision-maker nothing to assess and is the commonest reason these fail.
Conditions commonly attached
Costs. The applicant frequently pays the costs of the default and of the application, on the basis that they caused both.
A time limit for the defense. The draft has to be formally filed within a short specified period.
An unless provision. Automatic consequences if the new deadline is missed, per a pattern of missed dates.
Payment into an account. Occasionally required where the defense is weak or the applicant's conduct has been poor.
Security for costs. In some circumstances, particularly where the applicant is outside the jurisdiction.
A revised timetable. Directions bringing the matter back on track, with dates the applicant has to meet.
Preservation of enforcement steps. Where enforcement has begun, some steps may be preserved pending the outcome.
Limits on the defense. Relief is occasionally granted only in respect of part of the claim.
Comply with all of them. Breaching a condition of relief is worse than the original default.
After the default is set aside
File the defense immediately. Within whatever period the order specifies, and preferably sooner.
Meet every subsequent date. The matter is now being watched, and a further failure has a very different consequence.
Pay any costs promptly. An unpaid order is an unnecessary vulnerability in any later application.
Deal with enforcement. Steps taken while the judgment stood may need unwinding, and that is rarely automatic.
Correct the underlying cause. Whatever produced the default will produce another one otherwise.
Update the records. Address, representation and contact details, so that the next document arrives.
Tell the client what happened. Including the conditions, since some of them require their cooperation.
Preserve the file. The sequence may become relevant later on, particularly if any further difficulty arises.
Check whether other steps were missed. A party absent long enough for a default to be entered has frequently missed other obligations in the same period without noticing.
Do not treat it as vindication. Setting aside a default decides nothing at all about the merits of the claim.
Reassess the case honestly. A defense drafted quickly under pressure deserves a proper review once the immediate emergency has passed and the timetable allows it.
Applications to set aside a default succeed frequently, and there are two routes: as of right where service was defective, and discretionary in every other case.
Service is therefore the first question, and method, address, recipient and proof each deserve checking before any discretionary argument is constructed.
The discretionary application requires a draft defense with a real prospect of success, an explanation of the failure, the date of knowledge and an account of what followed.
Conditions are common: costs, a short period for filing the defense, an unless provision, and occasionally payment into an account or security.
Afterwards, filing the defense immediately, meeting every subsequent date, paying costs promptly and correcting the underlying cause are what prevent a return to the same position.
Points to carry away
- A defense with real prospects is usually required.
- Defective service frequently produces relief as of right.
- Promptness is examined closely.
- Conditions including costs are common.
- The application should attach the proposed defense.
Questions readers ask
What is the most important element of an application to set aside?
A draft defense. These applications are decided largely on what the party would have said had they responded in time, and one that asserts an intention to defend without producing the document gives the decision-maker nothing to assess. A defense with a real prospect of success frequently carries an application that a weak explanation would otherwise sink, which is why preparing it comes before drafting anything else.
Does defective service automatically defeat a default?
In many systems, yes, or close to it. Where a party was never properly served, the default was entered against somebody who had no opportunity to respond, and relief is frequently available as of right rather than as a matter of discretion. That makes service the first question in every one of these applications: the method used, the address, the recipient and the proof each deserve checking before any discretionary argument is built.
What conditions usually attach to setting aside a default?
Costs are the most common, on the basis that the applicant caused both the default and the application to undo it. Beyond that, a short period for formally filing the defense, an unless provision imposing an automatic consequence if that period is missed, and occasionally a payment into an account where the defense is weak or the conduct has been poor. Every condition should be diarized, because breaching one is worse than the original default.
Sources
- Federal Rules of Civil Procedure — Rule 55(c), Setting Aside a Defaultlaw.cornell.edu
- Federal Rules of Civil Procedure — Rule 60(b), Relief from a Judgment or Orderlaw.cornell.edu
- Federal Rules of Civil Procedure — Rule 60(b)(4), Void Judgmentlaw.cornell.edu
- Federal Rules of Civil Procedure — Rule 12(b)(5), Insufficient Service of Processlaw.cornell.edu
- Legal Information Institute — Default Judgmentlaw.cornell.edu
- Federal Rules of Civil Procedure — Rule 60(c), Timing of a Motionlaw.cornell.edu
Urban Justice Docket is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Missing a Deadline
Filing Late and Asking to Be Heard
A document filed out of time is generally not considered unless permission is given. The application seeking that permission should accompany the document rather than follow it, should explain the delay factually, should demonstrate that nothing was lost by it, and should be made the day the problem is identified rather than the week afterwards.
The Reasons That Rarely Work
Certain explanations for missing a deadline fail with great consistency: pressure of work, not knowing about the period, an internal system failure, waiting for instructions, and reliance on somebody else. Recognizing that an application rests on one of them is useful, because it redirects the effort toward the factors that can still be influenced.
Prejudice to the Other Party
Prejudice means something the other side has actually lost through the delay: evidence that has degraded, a witness who is unavailable, expenditure incurred in reliance, or an opportunity that has closed. It does not mean the inconvenience of a matter proceeding, or the loss of a windfall that a missed deadline would have produced. Separating the two is what decides most contested applications.