Motion to Set Aside / Vacate Default Judgment (Debt) - Alaska

IN THE [☐ DISTRICT ☐ SUPERIOR] COURT FOR THE STATE OF ALASKA

[____________] JUDICIAL DISTRICT AT [____________]

Case No. [____________]

DEFENDANT'S MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

Filed Pursuant to Alaska R. Civ. P. 55(e) and 60(b)

Defendant, [____________] ("Defendant"), appearing [☐ self-represented / ☐ by and through undersigned counsel], respectfully moves this Court to set aside and vacate the default judgment entered against Defendant on [__/__/____], pursuant to Alaska R. Civ. P. 55(e) and 60(b). In support, Defendant states as follows:

I. INTRODUCTION AND BASIS FOR RELIEF

1. This is a debt-collection action in which Plaintiff [☐ is a debt buyer / ☐ is a collection agency / ☐ claims to be the original creditor] seeks to collect an alleged consumer debt. A default judgment was entered against Defendant on [__/__/____] in the amount of $[____________], plus [interest, costs, and/or fees].

2. Defendant did not receive proper notice of this action and/or had good cause for not responding, has one or more meritorious defenses to the alleged debt, and brings this motion promptly upon learning of the judgment.

3. Alaska policy favors deciding cases on their merits. Relief from a default judgment under Rule 60(b) "may be granted upon such terms as are just," and doubts should be resolved in favor of allowing a party to defend on the merits.

II. IDENTIFICATION OF THE DEFAULT JUDGMENT

4. Date of judgment. The default judgment was entered on [__/__/____].

5. Amount. The judgment is in the amount of $[____________], consisting of [principal $[____], interest $[____], attorney's fees $[____], costs $[____]].

6. How Defendant learned of the judgment. Defendant first learned of the default judgment on [__/__/____] by the following means:

☐ A wage garnishment served on Defendant's employer
☐ A bank account garnishment, levy, or freeze
☐ A post-judgment writ of execution or judgment-debtor examination notice
☐ A credit report entry
☐ Other: [____________]

7. Defendant files this motion [____] days after first learning of the judgment, which is within a reasonable time and within the applicable deadline under Rule 60(b).

III. LEGAL STANDARD

8. Rule 55(e). "For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." Alaska R. Civ. P. 55(e).

9. Rule 60(b) — relief from a final judgment. On motion and upon such terms as are just, the court may relieve a party from a final judgment for: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied or discharged; or (6) any other reason justifying relief. Alaska R. Civ. P. 60(b).

10. A judgment without valid service is void. A court acquires personal jurisdiction over a defendant only through valid service of process. A default judgment entered when the defendant was never properly served is void for lack of personal jurisdiction and is subject to being set aside under Rule 60(b)(4) without regard to the strength of any defense. Alaska R. Civ. P. 4, 12(b).

11. Meritorious defense. Except where the judgment is void, a movant seeking relief from a default judgment should ordinarily show both a justification for the default (good cause / excusable neglect) and a meritorious defense to the underlying claim.

IV. GROUNDS FOR SETTING ASIDE THE JUDGMENT

☐ A. The judgment is VOID — defective or no service of process; lack of personal jurisdiction. Defendant was never validly served with the summons and complaint as required by Alaska R. Civ. P. 4. Specifically: [describe — e.g., "Defendant did not reside at the address where service was attempted," "the return reflects service on a person not authorized to accept it," "no signed return receipt exists," "Defendant first learned of the suit through the garnishment"]. Because the Court lacked personal jurisdiction, the judgment is void and must be vacated. Alaska R. Civ. P. 60(b)(4).

☐ B. Mistake, inadvertence, surprise, or excusable neglect. Defendant's failure to respond was the result of excusable neglect and constitutes good cause to set aside the default, in that: [describe — e.g., "Defendant was hospitalized," "the papers were misdelivered or received late," "Defendant reasonably believed the matter had been resolved or disputed with the collector"]. Alaska R. Civ. P. 55(e); 60(b)(1).

☐ C. Fraud, misrepresentation, or misconduct. The judgment was obtained through fraud, misrepresentation, or misconduct by Plaintiff or its agents, including [describe — e.g., "a false affidavit or false return of service," "misrepresentation of the amount owed," "concealment of the absence of any assignment"]. Alaska R. Civ. P. 60(b)(3).

☐ D. Newly discovered evidence. Defendant has discovered evidence that could not, with reasonable diligence, have been discovered earlier, namely: [describe]. Alaska R. Civ. P. 60(b)(2).

☐ E. Defendant has a meritorious defense (see Section V).

V. DEFENDANT HAS A MERITORIOUS DEFENSE

12. Defendant is prepared to present one or more meritorious, fact-supported defenses that, if proven, would defeat Plaintiff's claim:

☐ Statute of limitations. The alleged debt is time-barred. An action on a contract or liability, express or implied (including most credit-card and open-account debt), must be brought within three (3) years (AS 09.10.053); a sale-of-goods contract is governed by a four (4) year period (AS 45.02.725). The last payment/activity on the account occurred on or about [__/__/____], more than the limitations period before suit was filed.

☐ Not the debtor / mistaken identity / identity theft. Defendant is not the person who incurred the alleged debt and/or the account was opened or used as a result of identity theft. [Describe; attach FTC Identity Theft Report / police report as Exhibit [__].]

☐ Wrong amount. The amount of the judgment is incorrect, inflated, or includes unauthorized interest, fees, or charges. The correct balance, if any, is $[____________].

☐ Debt paid, settled, or discharged. The alleged debt was paid, settled, or discharged (including by discharge in bankruptcy on [__/__/____], Case No. [____________]) and is not owed.

☐ Plaintiff lacks standing / no chain of assignment. Plaintiff is not the original creditor and has not proven a complete, unbroken chain of assignment showing it owns Defendant's specific account; it is not the real party in interest.

☐ Plaintiff not licensed to collect in Alaska. Plaintiff and/or its predecessor was required to be licensed as a collection agency under AS 08.24 and has not shown it held a valid license at all relevant times. [Verify exemptions under AS 08.24.090(b).]

☐ No § 1692g validation; FDCPA violations. Plaintiff and/or its predecessor failed to provide the validation notice and verification required by 15 U.S.C. § 1692g and/or sued on a time-barred or unverified debt in violation of the FDCPA.

☐ Other meritorious defense: [____________]

13. These defenses are substantiated by the facts in Defendant's Affidavit/Declaration, below, and the attached exhibits.

VI. NO UNFAIR PREJUDICE TO PLAINTIFF; CONDUCT NOT CULPABLE

14. No unfair prejudice. Setting aside the judgment will not unfairly prejudice Plaintiff, which retains its evidence and its claim and loses only the advantage of a default. Defendant is prepared to proceed promptly. The court may set just terms — including costs — as a condition of relief. Alaska R. Civ. P. 60(b).

15. Conduct not culpable. Defendant's failure to appear was not willful or in bad faith; it resulted from [lack of valid service / excusable neglect], as set forth in the attached Affidavit/Declaration.

VII. DEFENDANT'S AFFIDAVIT / DECLARATION

STATE OF ALASKA )
[____________] JUDICIAL DISTRICT )

I, [____________], state as follows:

1. I am the Defendant in this action, am over the age of 18, and am competent to testify. I make this statement on personal knowledge.

2. I was never properly served with the summons and complaint in this case. [State the facts: where you lived on the date of attempted service; whether you received the papers; who, if anyone, was served; how you actually learned of the lawsuit.]

3. I first learned that a judgment had been entered against me on [__/__/____], when [describe — e.g., "my wages were garnished" / "my bank account was frozen"].

4. I have a meritorious defense to Plaintiff's claim, namely: [state facts supporting the defense(s) checked above].

5. My failure to respond was not intentional and was not the result of any disregard of this Court. [State the facts establishing excusable neglect or lack of service.]

6. I ask the Court to set aside the default judgment, permit me to defend on the merits, and stay any collection in the meantime.

_______________________________________
[____________], Defendant

[☐ NOTARIZED] Sworn to and subscribed before me this [____] day of [____________], 20[____].
_______________________________________
Notary Public — My commission expires: [__/__/____]

[☐ DECLARATION] I declare under penalty of perjury under the laws of the State of Alaska that the foregoing is true and correct. Executed on [__/__/____] at [____________], Alaska.
_______________________________________
[____________], Defendant

VIII. REQUEST TO STAY EXECUTION AND GARNISHMENT

16. Defendant requests that the Court stay execution on the judgment — including any wage garnishment, bank garnishment, levy, or other post-judgment process — pending the Court's ruling on this motion. Alaska R. Civ. P. 62. Absent a stay, Defendant faces immediate and irreparable harm from the garnishment of wages or funds that may be exempt and that Defendant needs for basic living expenses, even though the underlying judgment is subject to being vacated.

17. Defendant further requests that any funds already garnished or levied be held by the garnishee or the Court, and not disbursed to Plaintiff, until this motion is decided.

IX. RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that this Court:

A. SET ASIDE and VACATE the default judgment entered on [__/__/____];

B. STAY all execution, garnishment, levy, and other post-judgment collection proceedings pending the Court's ruling, and order that any funds already garnished or levied be held and not disbursed;

C. QUASH any outstanding writ of garnishment or execution issued on the judgment;

D. GRANT Defendant leave to file an Answer and defend this action on the merits, with the accompanying [proposed] Answer deemed filed as of the date of the order;

E. Set this matter for a hearing if the Court deems one necessary; and

F. Grant such other and further relief as the Court deems just and proper.

X. PROPOSED ORDER

A proposed Order Setting Aside Default Judgment is submitted contemporaneously with this motion.

[PROPOSED] ORDER

This matter came before the Court on Defendant's Motion to Set Aside / Vacate Default Judgment under Alaska R. Civ. P. 55(e) and 60(b). Having considered the motion, the supporting affidavit/declaration, any opposition, and the applicable law, the Court finds good cause and that the motion is due to be GRANTED.

It is therefore ORDERED that the default judgment entered on [__/__/____] is SET ASIDE and VACATED; all garnishments, levies, and executions on that judgment are QUASHED and STAYED, and any garnished or levied funds shall be returned to Defendant; and Defendant is granted leave to file an Answer within [____] days of this Order.

DATED this ____ day of __________, 20____.

_________________________________
[☐ District ☐ Superior] Court Judge

XI. SIGNATURE

DATED this [____] day of [____________], 20[____].

_______________________________________
[____________________________________]
☐ Defendant, self-represented ☐ Attorney for Defendant
Alaska Bar No. (if attorney): [____________]
[Street Address]
[City], AK [____]
Telephone: [____________]
Email: [____________________________________]

XII. CERTIFICATE OF SERVICE

I certify that on [__/__/____] a true and correct copy of the foregoing Defendant's Motion to Set Aside / Vacate Default Judgment, the supporting Affidavit/Declaration, and the proposed Order was served on Plaintiff's counsel of record (or on Plaintiff, if unrepresented) in accordance with Alaska R. Civ. P. 5, by the following method:

☐ Alaska Court System TrueFiling (electronic filing/service)
☐ U.S. Mail, first-class postage prepaid
☐ Electronic mail (with consent)
☐ Personal / Hand Delivery

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

_______________________________________
[____________________________________]

ALASKA PRACTICE NOTES

• Authority: Alaska R. Civ. P. 55(e) — "For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)."
• Deadline: A motion under Rule 60(b)(1)–(3) must be filed within a reasonable time and not more than ONE (1) YEAR after the judgment. A Rule 60(b)(4) (void judgment) or 60(b)(6) motion need only be filed within a "reasonable time." Confirm the entry date and calendar immediately.
• Void for defective service: A judgment entered without valid service is void for lack of personal jurisdiction (Rule 60(b)(4)). Common in debt cases where the consumer first learns of the suit through a garnishment ("sewer service").
• "Upon such terms as are just": The court may condition relief on terms, including payment of the opposing party's attorney's fees relating to the default proceedings. Nichiro Gyogyo Kaisha, Ltd. v. Norman, 606 P.2d 401 (Alaska 1980).
• Show a meritorious defense (unless the judgment is void) together with good cause for the default.
• Stay collection: Request a stay of execution/garnishment under Rule 62 with the motion; ask that garnished funds be held pending the ruling.

Sources and References

• Alaska Rules of Civil Procedure: https://public.courts.alaska.gov/web/rules/docs/civ.pdf
• Alaska R. Civ. P. 55(e) — setting aside default / default judgment in accordance with Rule 60(b).
• Alaska R. Civ. P. 60(b) — relief from a final judgment (mistake, newly discovered evidence, fraud, void, satisfied, other).
• Nichiro Gyogyo Kaisha, Ltd. v. Norman, 606 P.2d 401 (Alaska 1980) — Rule 55(e)/60(b) relief "upon such terms as are just": https://law.justia.com/cases/alaska/supreme-court/1980/4471-1.html
• AS 09.10.053 (contract actions — 3 years): https://law.justia.com/codes/alaska/title-9/chapter-10/section-09-10-053/
• AS 08.24 (Collection Agencies): https://law.justia.com/codes/alaska/title-8/chapter-24/
• Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.: https://www.ftc.gov/legal-library/browse/rules/fair-debt-collection-practices-act-text
• CFPB — time-barred debt: https://www.consumerfinance.gov/ask-cfpb/can-debt-collectors-collect-a-debt-thats-several-years-old-en-1423/