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

[☐ DISTRICT COURT ☐ COUNTY COURT], [____________] COUNTY, COLORADO

[Court Address: ____________]

MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT AND FOR LEAVE TO ANSWER

(District Court: C.R.C.P. 55(c) and 60(b); County Court: C.R.C.P. 355 and 360(b))

Defendant [____________] ("Defendant"), appearing [☐ pro se / ☐ by counsel], respectfully moves the Court under [C.R.C.P. 55(c) and 60(b) for district court / C.R.C.P. 355 and 360(b) for county court] to set aside the entry of default and to vacate the default judgment entered against Defendant, to grant Defendant leave to file the tendered Answer, and to stay execution and garnishment. In support, Defendant states:

I. INTRODUCTION

1. This is a debt-collection action in which Plaintiff obtained a default judgment against Defendant without Defendant having had an opportunity to defend on the merits. Defendant moves to set aside the default and vacate the judgment so the case can be decided on its merits. Colorado courts construe the criteria for vacating a default judgment liberally in favor of the movant, especially when the motion is promptly made. Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112, 1116 (Colo. 1986), discussed in Goodman Associates, LLC v. WP Mountain Properties, LLC, 222 P.3d 310 (Colo. 2010).

2. Defendant first learned of the [default / default judgment] on [__/__/____], when [☐ Defendant's wages were garnished / ☐ Defendant's bank account was levied / ☐ Defendant received a writ of garnishment or notice / ☐ Defendant received a copy of the judgment / ☐ other: [____________]], and acted promptly thereafter.

II. IDENTIFICATION OF THE DEFAULT JUDGMENT

3. Plaintiff filed the Complaint on [__/__/____], alleging [☐ breach of contract / ☐ account stated / ☐ unjust enrichment / ☐ money owed] arising from an alleged consumer debt originally owed to [ORIGINAL CREDITOR].

4. A return of service states that Defendant was served on [__/__/____] by [☐ personal service / ☐ substituted service / ☐ service by publication / ☐ mail] at [____________].

5. Default was entered on [__/__/____], and a default judgment was entered on [__/__/____] in the total amount of $[____________] (principal $[____]; interest $[____]; costs $[____]; attorney's fees $[____]).

III. LEGAL STANDARD

6. C.R.C.P. 55(c) provides: "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)."

7. C.R.C.P. 60(b) provides that, "[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than 182 days after the judgment, order, or proceeding was entered or taken."

8. To set aside a default judgment under Rule 55(c)/60(b)(1), Colorado courts consider whether (a) the neglect that resulted in the judgment was excusable; (b) the moving party has a meritorious defense; and (c) relief would be consistent with considerations of equity — including prejudice and promptness. Buckmiller, 727 P.2d at 1116; Goodman, 222 P.3d 310 (Colo. 2010). A judgment entered without valid service of process is void for lack of personal jurisdiction under Rule 60(b)(3), without the excusable-neglect showing. Goodman, 222 P.3d 310.

County-court alternative (C.R.C.P. 355 and 360(b)): Rule 355 governs county-court defaults; subsection (c) directs relief from an entry of default and judgment following failure to appear at trial in accordance with Rule 360. For a county-court judgment, identify the applicable ground under Rule 360(b). The motion must be made within a reasonable time; for mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation, or other misconduct under grounds (1) and (2), Rule 360(b) states a six-month outside limit. A Rule 360(b) motion alone does not suspend enforcement; request a separate stay under Rule 362(b). Delete this paragraph for a district-court filing.

IV. GROUNDS FOR RELIEF

☐ Void judgment — defective service / no personal jurisdiction (C.R.C.P. 60(b)(3) in district court; 360(b)(3) in county court). Service of the summons did not comply with the applicable service rule, the Court never acquired personal jurisdiction over Defendant, and the judgment is void. [Explain: Defendant did not live or work at the address of service; the person allegedly served was not a household member; the return is false; Defendant had moved.]

☐ Mistake, inadvertence, surprise, or excusable neglect (C.R.C.P. 60(b)(1) in district court; 360(b)(1) in county court). The default resulted from Defendant's excusable neglect. [Explain: serious illness or hospitalization; reasonable but mistaken belief that the matter was resolved or being handled; reliance on a payment arrangement; comparable circumstance a reasonably prudent person could not have guarded against.] This Motion is filed within [182 days of entry for district court / six months of entry for county court].

☐ Fraud, misrepresentation, or misconduct (C.R.C.P. 60(b)(2) in district court; 360(b)(2) in county court). Plaintiff obtained the judgment by fraud or misrepresentation, including [a false return of service / misrepresenting the amount or ownership of the debt]. This Motion is filed within [182 days of entry for district court / six months of entry for county court].

☐ Judgment satisfied, released, or discharged (C.R.C.P. 60(b)(4) in district court; 360(b)(4) in county court). The judgment itself was satisfied, released, or discharged after entry on [__/__/____]: [FACTS AND PROOF]. If the alleged debt was instead paid or discharged before judgment, use that fact as a defense in Section V and identify a separate ground for setting aside the default judgment.

☐ Any other reason justifying relief (C.R.C.P. 60(b)(5) in district court; 360(b)(5) in county court). [Explain.]

V. MERITORIOUS DEFENSE (Debt-Specific)

9. Defendant has one or more meritorious defenses, any of which would defeat or reduce Plaintiff's claim (check all that apply):

☐ Statute of limitations. The alleged debt is time-barred. Section 13-80-101(1)(a) generally places contract and UCC actions in a three-year-after-accrual category but expressly yields where § 13-80-103.5 applies. Section 13-80-103.5 separately addresses specified liquidated debts and rights set forth in instruments securing or evidencing debt; it is not a six-year category for every contract or every writing. [Classify the claim and instrument and verify accrual, payments, acknowledgments, and any specific statute.] Relevant dates: [________________________________].

☐ Wrong defendant / mistaken identity / identity theft. Defendant did not incur the alleged debt; the account is not Defendant's or is the product of identity theft.

☐ Incorrect amount. The judgment amount is incorrect, inflated, or includes unauthorized interest, fees, or charges Plaintiff cannot substantiate.

☐ Paid, settled, or discharged. The alleged debt has been paid, settled, released, or discharged in bankruptcy.

☐ Lack of standing / no proof of assignment. Plaintiff is a debt buyer that has not established an unbroken chain of assignment from the original creditor and is not the real party in interest (C.R.C.P. 17(a)).

☐ Potential separate FDCPA claim—not by itself a defense that the debt is invalid. If a qualifying debt collector failed to provide the notice or verification required by 15 U.S.C. § 1692g, Defendant may have a separate civil claim under 15 U.S.C. § 1692k. A formal pleading is not an “initial communication” under § 1692g(d). Plead such a claim only if procedurally permitted, and evaluate any state-law issue separately.

☐ Other: [____________________________________]

10. Defendant's proposed Answer asserting these defenses is tendered with this Motion.

VI. THIS MOTION IS TIMELY AND DEFENDANT ACTED PROMPTLY

11. Defendant filed this Motion within [182 days of entry for district-court grounds (1) or (2) / six months of entry for county-court grounds (1) or (2) / a reasonable time for another ground]. Defendant did not delay; Defendant acted promptly upon learning of the [default / judgment] on [__/__/____].

VII. REQUEST TO STAY EXECUTION / GARNISHMENT

12. Defendant requests that the Court stay execution on the judgment — including any writ of execution, bank levy, and writ of continuing garnishment (wage garnishment) — pending determination of this Motion, and order that any garnished or levied funds be held and not disbursed to Plaintiff.

☐ Defendant has separately filed a Claim of Exemption and/or motion to stay execution and recall the writ of garnishment.

VIII. CERTIFICATE OF CONFERRAL (C.R.C.P. 121 § 1-15)

☐ Pursuant to C.R.C.P. 121 § 1-15, the undersigned conferred (or attempted in good faith to confer) with Plaintiff's counsel regarding this Motion on [__/__/____]. Plaintiff [☐ opposes / ☐ does not oppose / ☐ did not respond to] the relief requested.

IX. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that the Court:

A. Set aside the entry of default and vacate the default judgment entered [__/__/____];

B. Grant Defendant leave to file the tendered Answer;

C. Quash service of the summons (if the judgment is void) and recall any writ of execution or garnishment;

D. Stay execution and garnishment pending determination of this Motion and order any seized funds held; and

E. Grant such other relief as the Court deems just.

Dated: [__/__/____]

Respectfully submitted,

/s/ [____________________________________]

[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
Atty Reg. # (if attorney): [____________]
[Address] | [Phone] | [Email]

VERIFICATION / DECLARATION OF DEFENDANT

I, [____________________], state under oath (or affirm under penalty of perjury under the law of Colorado) as follows:

1. I am the Defendant in this action and have personal knowledge of the facts below.

2. Service / notice. [State the facts of non-service or lack of notice: where you actually lived and worked on the alleged service date; that you were not served and did not receive the summons and complaint; who lives at the service address.]

3. How and when I learned of the judgment. I first learned of the [default / default judgment] on [__/__/____], when [____________].

4. Excusable circumstances (if under 60(b)(1)). [Describe the mistake, inadvertence, surprise, or excusable neglect.]

5. Meritorious defense. [State the facts supporting each defense checked above — e.g., date of last payment for the limitations defense; that the account is not mine; the correct balance; proof of payment or discharge; or that no § 1692g notice was received.]

6. Hardship. [Describe the harm from garnishment/levy.]

I declare under penalty of perjury under the law of Colorado that the foregoing is true and correct.

Executed on [__/__/____], at [____________], Colorado.

_______________________________
[____________________________________], Defendant

[PROPOSED] ORDER

The Court, having considered Defendant's Motion to Set Aside / Vacate Default Judgment under [C.R.C.P. 55(c) and 60(b) for district court / C.R.C.P. 355 and 360(b) for county court], any response, the Verification/Declaration of Defendant, and the tendered Answer, and good cause appearing, ORDERS:

The Motion is GRANTED. The entry of default and the default judgment entered on [__/__/____] are SET ASIDE AND VACATED. Defendant's tendered Answer is accepted for filing. Any writ of execution or garnishment issued on the judgment is RECALLED AND QUASHED, and execution is stayed.

DATED: ____________________

_______________________________
[☐ District / ☐ County] Court Judge

CERTIFICATE OF SERVICE

I certify that on [__/__/____] a true and correct copy of the foregoing MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT AND FOR LEAVE TO ANSWER, the [PROPOSED] ORDER, and the tendered ANSWER was served on Plaintiff's counsel of record (or on Plaintiff, if unrepresented) by:

☐ Colorado Courts E-Filing (CCE) system
☐ U.S. Mail, postage prepaid
☐ E-mail (by agreement / where authorized)
☐ Hand delivery

Addressed to:

[____________________________________]
[____________________________________]

/s/ [____________________________________]

[____________________________________]

COLORADO PRACTICE NOTES

• Two-step rule. A default judgment is set aside "in accordance with Rule 60(b)" (C.R.C.P. 55(c)); the entry of default alone is set aside for "good cause."
• Deadline. Rule 60(b) motions must be filed within a "reasonable time," and for grounds (1) mistake/inadvertence/surprise/excusable neglect and (2) fraud, not more than 182 days after entry. A void-judgment motion under 60(b)(3) is governed only by the "reasonable time" standard. Verify the current rule text and 182-day figure.
• Court. Confirm whether the case is in county court or district court. County-court default is governed by C.R.C.P. 355, with judgment relief under Rule 360(b), which has a six-month outside limit for grounds (1) and (2). District-court garnishment follows Rule 103; county-court garnishment follows Rule 403 and execution follows Rule 369. Check the current Judicial Department exemption forms.
• Buckmiller factors. For excusable-neglect relief, show (1) excusable neglect, (2) a meritorious defense, and (3) that equitable considerations (lack of prejudice, prompt action) favor relief.
• Void judgments. A judgment entered without valid service is void and must be vacated; a meritorious defense is not required for void-judgment relief.
• Stay enforcement. A Rule 60(b) motion does not by itself suspend the judgment's operation — request an affirmative stay and file a claim of exemption to protect wages/funds.
• Limitations on debt: classify the claim under § 13-80-101(1)(a), § 13-80-103.5, and any more specific law; do not equate every contract or writing with the six-year liquidated-debt/instrument category. Confirm the controlling accrual and later events.

Sources and References

• C.R.C.P. 55 and 60 (district court), 355 and 360 (county court): https://content.leg.colorado.gov/sites/default/files/images/olls/crs2023-court-rules.pdf
• Buckmiller v. Safeway Stores, Inc., 727 P.2d 1112 (Colo. 1986) (factors for setting aside default judgment; cited in the official Goodman opinion).
• Goodman Associates, LLC v. WP Mountain Properties, LLC, 222 P.3d 310 (Colo. 2010) (void-judgment standard; the court found service valid and reinstated the default judgment). Official opinion: https://www.coloradojudicial.gov/sites/default/files/2024-05/09SA144.pdf
• Colorado Judicial Branch — Garnishment & Exemption (JDF) forms: https://www.coloradojudicial.gov/self-help/forms
• Colo. Rev. Stat. § 13-80-103.5 (six-year limitation; liquidated debt) and § 13-80-101 (three-year contract limitation): https://leg.colorado.gov/colorado-revised-statutes
• Colorado Fair Debt Collection Practices Act, Colo. Rev. Stat. § 5-16-101 et seq.: https://leg.colorado.gov/colorado-revised-statutes
• 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