Motion to Vacate Default Judgment (Debt) - Delaware

IN THE [☐ JUSTICE OF THE PEACE COURT NO. ____ / ☐ SUPERIOR COURT / ☐ COURT OF COMMON PLEAS] OF THE STATE OF DELAWARE

IN AND FOR [☐ NEW CASTLE / ☐ KENT / ☐ SUSSEX] COUNTY

DEFENDANT'S MOTION TO VACATE DEFAULT JUDGMENT AND FOR LEAVE TO DEFEND

([☐ Del. J.P. Ct. Civ. R. 60(b) and 10 Del. C. § 9538] / [☐ Del. Super. Ct. Civ. R. 55(c), 60(b), 60(c)] / [☐ Del. C.C.P. Civ. R. 60(b)])

Defendant, [____________] ("Defendant"), appearing [☐ self-represented / ☐ by counsel], respectfully moves this Court to vacate the default judgment entered against Defendant, to let Defendant into a trial / grant leave to defend on the merits, and to stay execution and wage attachment pending decision. In support, Defendant states:

I. INTRODUCTION AND IDENTIFICATION OF THE JUDGMENT

1. This is a debt-collection action. Plaintiff obtained a default judgment against Defendant without Defendant having had an opportunity to defend on the merits.

2. Plaintiff filed this action on [__/__/____], alleging an alleged consumer debt of $[____________] originally owed to [ORIGINAL CREDITOR].

3. A default judgment was entered against Defendant on [__/__/____] in the total amount of $[____________] (principal $[____]; interest $[____]; costs/fees $[____]).

4. Service. The record reflects that service was attempted by [☐ personal service / ☐ certified mail, return receipt requested / ☐ certified mail returned unclaimed / ☐ other: [____________]] on or about [__/__/____].

5. Timeliness. Defendant first learned of the [default / judgment] on [__/__/____], when [☐ a wage attachment was served on Defendant's employer / ☐ an execution / levy was served / ☐ Defendant received notice of the judgment / ☐ other: [____________]]. This Motion is filed:

☐ Within 15 days after entry of the default judgment (debt/trespass/replevin).
☐ Within 30 days after entry, because service was made by certified mail and the certified mail was returned unclaimed.
☐ Within a reasonable time, because the judgment is void (defective service) and/or has been satisfied/discharged.

II. LEGAL STANDARD

A. Justice of the Peace Court — 10 Del. C. § 9538 and J.P. Ct. Civ. R. 60(b)

6. 10 Del. C. § 9538 provides: "(a) A defendant may, within 15 days after the day of giving a judgment by default, apply to the court to vacate the judgment, and let the parties into a trial, provided however that a defendant may, within 30 days after a judgment by default, apply to have the judgment vacated, if service was made by certified mail, return receipt requested, and the certified mail was returned unclaimed. … (c) If, upon the hearing, the justice is satisfied that there ought to be a trial, and that the defendant was not guilty of wilful negligence in letting judgment go against the defendant by default, the application shall be granted, and a day appointed for the trial …."

7. Justice of the Peace Court Civil Rule 60(b) provides corresponding grounds for relief from a judgment — mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence; fraud; that the judgment is void; that it has been satisfied or discharged; or any other reason justifying relief — and permits a motion in exceptional circumstances (such as a void or satisfied judgment) within a reasonable time even after the 15-/30-day period.

B. Superior Court — Super. Ct. Civ. R. 55(c), 60(b), 60(c)

8. Rule 55(c) permits the Court to set aside an entry of default for good cause and a default judgment in accordance with Rule 60(b). Rule 60(b) provides: "On motion and upon such terms as are just the Court may relieve a party or a party's legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered at the time of the trial; (3) fraud, misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, 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 applications; or (6) any other reason justifying relief from the operation of the judgment. Such motion shall be made within a reasonable time …."

9. Rule 60(c) sets the deadline for vacating a default judgment: "For the reasons in subsections (b)(1), (2), and (3) in this Rule, a motion to vacate a default judgment shall be made: (A) in debt, trespass and replevin actions, not more than 15 days after judgment was given by default or not more than 30 days, if service was made by certified mail and the certified mail was returned unclaimed …. For all other reasons, the motion shall be made in a reasonable time."

C. Standard for Relief

10. To vacate a default judgment, Delaware courts ask (1) whether the moving party has shown excusable neglect (or, in JP Court, the absence of wilful negligence in letting the default occur); (2) whether the moving party has a meritorious defense — i.e., a defense that, if proven, would change the result; and (3) whether the non-moving party would suffer substantial prejudice. (Verizon Del., Inc. v. Baldwin and related authority; see also Battaglia v. Wilmington Sav. Fund Soc'y (Del. 1978) 379 A.2d 1132.) A judgment entered without valid service is void and must be vacated under Rule 60(b)(4) without regard to a meritorious defense.

III. GROUNDS FOR RELIEF

☐ Void judgment — defective service / no personal jurisdiction (Rule 60(b)(4)). Service did not comply with the applicable service rules, 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 certified mail was returned unclaimed and Defendant never received it; the return is false; Defendant had moved.]

☐ Mistake, inadvertence, surprise, or excusable neglect (Rule 60(b)(1)) / no wilful negligence (§ 9538(c)). The default resulted from excusable neglect and not from wilful negligence. [Explain: serious illness or hospitalization; reasonable but mistaken belief the matter was resolved or being handled; reliance on a payment arrangement; comparable circumstance a reasonably prudent person could not have guarded against.]

☐ Newly discovered evidence (Rule 60(b)(2)). [Explain.]

☐ Fraud, misrepresentation, or misconduct (Rule 60(b)(3)). Plaintiff obtained the judgment by fraud or misrepresentation, including [a false return of service / misrepresenting the amount or ownership of the debt].

☐ Satisfied, released, or discharged (Rule 60(b)(5)). The alleged debt was paid, settled, released, or discharged (including by bankruptcy on [__/__/____]).

☐ Any other reason justifying relief (Rule 60(b)(6)). [Explain.]

IV. MERITORIOUS DEFENSE (Debt-Specific)

11. Defendant has one or more meritorious defenses, any of which would change the result (check all that apply):

☐ Statute of limitations. The alleged debt is time-barred. Delaware provides a three-year limitation period for actions on a contract/debt under 10 Del. C. § 8106. [Verify the applicable period and the accrual/charge-off date; note possible application of a borrowing statute, 10 Del. C. § 8121, for out-of-state debt.] The last payment/charge-off occurred on or about [__/__/____].

☐ 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 a complete, unbroken chain of assignment from the original creditor and is not the proper party to enforce the debt.

☐ No § 1692g validation / FDCPA violations. Plaintiff and/or its predecessors failed to provide the validation required by 15 U.S.C. § 1692g and/or engaged in false, deceptive, or unfair collection practices under the FDCPA, 15 U.S.C. § 1692 et seq.

☐ Other: [____________________________________]

12. Defendant's proposed Answer / defense asserting these grounds is submitted with this Motion.

V. REQUEST TO STAY EXECUTION / WAGE ATTACHMENT

13. Defendant requests that the Court stay execution on the judgment — including any writ of execution, levy, and wage attachment — pending the hearing and determination of this Motion, and order that any garnished or levied funds be held and not disbursed to Plaintiff.

☐ Defendant asserts the wage/property exemptions available under 10 Del. C. § 4913 and applicable law and requests a stay/recall of any execution or attachment.

VI. PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that the Court:

A. Vacate the default judgment entered [__/__/____];

B. Let Defendant into a trial / grant leave to file the proposed Answer and defend on the merits;

C. Stay and recall any writ of execution, levy, or wage attachment issued on the judgment pending decision, and order any seized funds held;

D. Set the matter for trial / further proceedings on the merits; and

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

Dated: [__/__/____]

Respectfully submitted,

___________________________________
[____________________________________]
☐ Defendant, self-represented ☐ Attorney for Defendant
Del. Bar ID (if attorney): [____________]
[Address] | [Phone] | [Email]

AFFIDAVIT / DECLARATION OF DEFENDANT

STATE OF DELAWARE )
) ss:
COUNTY OF [________] )

I, [____________________], being duly sworn (or affirming under penalty of perjury), state:

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/complaint; that the certified mail was never received by you and was returned unclaimed; who lives at the service address.]

3. How and when I learned of the judgment. I first learned of the [default / judgment] on [__/__/____], when [____________]. I did not wilfully ignore this action.

4. Excusable circumstances. [Describe the mistake, inadvertence, surprise, or excusable neglect that caused the default, and that you were not guilty of wilful negligence.]

5. Meritorious defense. [State the facts supporting each defense checked in Section IV — e.g., the 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 the wage attachment/execution.]

7. Attached as Exhibit(s) [__] are true and correct copies of [the notice of attachment / execution / proof of payment / bankruptcy discharge / correspondence].

___________________________________
[____________________________________], Defendant

SWORN TO AND SUBSCRIBED before me this [____] day of [____________], 20[____].

___________________________________
Notary Public
My commission expires: [__/__/____]

[PROPOSED] ORDER

AND NOW, this [____] day of [____________], 20[____], Defendant's Motion to Vacate Default Judgment having been considered, it is hereby ORDERED:

The Motion is GRANTED. The default judgment entered [__/__/____] is VACATED. Defendant is permitted to defend on the merits, the matter is set for trial, and any writ of execution, levy, or wage attachment issued on the judgment is RECALLED AND STAYED.

___________________________________
[Justice of the Peace / Judge]

CERTIFICATE OF SERVICE

I certify that on [__/__/____] I served a true and correct copy of the foregoing MOTION TO VACATE DEFAULT JUDGMENT, the Affidavit/Declaration of Defendant, the proposed Answer, and the [Proposed] Order on Plaintiff's counsel of record (or on Plaintiff, if unrepresented) by:

☐ File & Serve / court e-filing system (where applicable)
☐ U.S. Mail, postage prepaid
☐ Hand delivery
☐ E-mail (where authorized)

Addressed to:

[____________________________________]
[____________________________________]

___________________________________
[____________________________________]
☐ Defendant, self-represented ☐ Attorney for Defendant

DELAWARE PRACTICE NOTES

• Identify the court — it controls the deadline. Most consumer-debt judgments are in the Justice of the Peace Court (10 Del. C. § 9538; JP Ct. Civ. R. 60(b)). Superior Court uses Super. Ct. Civ. R. 60(b)/(c). Court of Common Pleas (often the JP appeal court for a trial de novo) uses C.C.P. Civ. R. 60(b).
• Debt-action deadline: in debt/trespass/replevin, move within 15 days of the default judgment, or 30 days if service was by certified mail and the certified mail was returned unclaimed. A void or satisfied/discharged judgment may be attacked within a reasonable time.
• JP Court mechanics: file the motion on Civil Form 11 (Request for Motion Hearing); confirm the current filing fee and copy requirements. The standard is that "there ought to be a trial" and the defendant "was not guilty of wilful negligence" (§ 9538(c)).
• Three-part test (Superior Court / CCP): excusable neglect, a meritorious defense, and absence of substantial prejudice to the plaintiff. A void judgment is vacated under Rule 60(b)(4) without a meritorious-defense showing.
• Stay & exemptions: request a stay/recall of execution; Delaware exempts a large portion of wages from attachment (10 Del. C. § 4913 — verify current percentage) and protects certain property and public benefits.
• Limitations on debt: generally three years under 10 Del. C. § 8106; consider the borrowing statute (§ 8121) for out-of-state debt. Verify accrual/charge-off date.
• Appeal alternative: a JP Court debt judgment may be appealed to the Court of Common Pleas for a trial de novo within 15 days (10 Del. C. § 9571) — a separate remedy from a motion to vacate.

Sources and References

• Del. Super. Ct. Civ. R. 60 (relief from judgment; (c) default-judgment deadlines): https://courts.delaware.gov/rules/
• Del. J.P. Ct. Civ. Rules (Rule 60; vacating default judgments): https://courts.delaware.gov/rules/
• 10 Del. C. § 9538 (application to vacate JP Court default judgment in debt actions): https://law.justia.com/codes/delaware/title-10/chapter-95/subchapter-ii/section-9538/
• Delaware Courts — Civil Post-Judgment Procedures in the JP Court (vacating a default judgment): https://courts.delaware.gov/help/judgments/jp-postjudgment.aspx
• 10 Del. C. § 8106 (three-year limitation on debt/contract): https://delcode.delaware.gov/title10/c081/index.html
• 10 Del. C. § 4913 (wage attachment / exemptions): https://delcode.delaware.gov/title10/c049/index.html
• Battaglia v. Wilmington Sav. Fund Soc'y (Del. 1978) 379 A.2d 1132 (standard for relief from default judgment).
• 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