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

IN THE DISTRICT COURT OF THE [____________] JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF [____________]

Case No. [____________]

DEFENDANT'S MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT AND REQUEST TO STAY EXECUTION

Filed Pursuant to Idaho R. Civ. P. 55(c) and 60(b)

COMES NOW the Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], and respectfully moves this Court, pursuant to Idaho R. Civ. P. 55(c) and 60(b), to set aside the entry of default and to vacate the default judgment entered against Defendant in this action, and to stay any execution, writ, or garnishment pending the Court's ruling. In support, Defendant states as follows:

I. INTRODUCTION AND RELIEF SOUGHT

1. This is a consumer debt-collection action. Plaintiff is [☐ the original creditor / ☐ a debt buyer / ☐ a collection agency] alleging that Defendant owes [$____________] on an alleged [credit-card account / loan / open account / other: ____________].

2. The Court entered an entry of default on [__/__/____] and a default judgment against Defendant on [__/__/____] in the amount of [$____________], plus interest, costs, and fees (the "Default Judgment").

3. Defendant moves to set aside the entry of default and vacate the Default Judgment because [☐ the Default Judgment is VOID for defective service / lack of personal jurisdiction; ☐ Defendant's failure to respond was the result of mistake, inadvertence, surprise, or excusable neglect; ☐ Defendant has a meritorious defense and justice requires that the case be decided on the merits; ☐ the Default Judgment was procured by fraud, misrepresentation, or other misconduct; ☐ newly discovered evidence].

4. This Motion is supported by the accompanying Affidavit of Defendant, the proposed Answer attached hereto, and the records and files in this action.

II. THE DEFAULT JUDGMENT TO BE VACATED

5. Identify the Default Judgment:

6. This Motion is timely because it is filed within [☐ six (6) months / ☐ one (1) year (no personal service + no appearance) / ☐ a reasonable time (void judgment under Rule 60(b)(4))] of entry of the Default Judgment.

III. LEGAL STANDARD

7. Rule 55(c) / Rule 60(b). Under Idaho R. Civ. P. 55(c), "[f]or 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)." Rule 60(b) authorizes the Court to relieve a party from a final judgment for: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or is no longer equitable to apply prospectively; or (6) any other reason justifying relief.

8. Idaho's policy favoring decisions on the merits. Idaho courts construe Rule 60(b) liberally to grant relief from default judgments and to reach the merits, resolving doubts in favor of setting aside a default. To set aside a default judgment under Rule 60(b)(1), the moving party generally must show both (a) good cause / one of the enumerated grounds and (b) a meritorious defense to the underlying claim.

9. Void judgments (Rule 60(b)(4)). A judgment entered without valid service of process or without personal jurisdiction over the defendant is void. A void judgment is a legal nullity and must be set aside; the Court has no discretion to do otherwise. Relief from a void judgment is not subject to the 6-month limit of Rule 60(b), and Rule 60(b) separately preserves the Court's power to set aside, within one (1) year after judgment, a judgment obtained against a party who was not personally served and who failed to appear.

IV. GROUNDS FOR SETTING ASIDE THE DEFAULT JUDGMENT

☐ Ground 1 — The Default Judgment Is Void: Defective Service / No Personal Jurisdiction (Rule 60(b)(4); Rule 12(b)(2),(4),(5)). Defendant was never validly served with the summons and complaint as required by Idaho R. Civ. P. 4. Specifically: [☐ Defendant never received the summons and complaint; ☐ service was made at an address where Defendant did not reside; ☐ "sewer service" — the return of service is false; ☐ service was left with a person not authorized to accept it; ☐ Defendant was not subject to personal jurisdiction in Idaho]. Because service was defective, the Court never acquired personal jurisdiction over Defendant and the Default Judgment is void and must be vacated.

☐ Ground 2 — Mistake, Inadvertence, Surprise, or Excusable Neglect (Rule 60(b)(1)). Defendant's failure to timely answer was the result of [☐ a mistaken belief the matter had been resolved / disputed with the collector; ☐ illness, hospitalization, or family emergency; ☐ confusion about the deadline or the documents; ☐ non-receipt of papers due to relocation; ☐ reliance on assurances from Plaintiff or its agent]. The neglect was excusable and not willful, and Defendant acted promptly upon learning of the Default Judgment.

☐ Ground 3 — Meritorious Defense (see Section V). Defendant has one or more meritorious defenses to Plaintiff's claim, set forth in Section V and in the attached proposed Answer, which warrant a decision on the merits.

☐ Ground 4 — Fraud, Misrepresentation, or Other Misconduct (Rule 60(b)(3)). The Default Judgment was obtained by fraud, misrepresentation, or misconduct, including [☐ a false affidavit of service; ☐ a false or "robo-signed" affidavit of debt / amount; ☐ concealment of payment, settlement, or the true owner of the debt; ☐ suing the wrong person].

☐ Ground 5 — Newly Discovered Evidence (Rule 60(b)(2)). Evidence that by due diligence could not have been discovered in time, and that is material to the defense, has come to light: [____________].

V. MERITORIOUS DEFENSE (DEBT-SPECIFIC)

10. Defendant has the following meritorious defense(s) to Plaintiff's claim. Defendant should select only those supported by the facts; each, if proved, would defeat or reduce Plaintiff's recovery:

☐ (a) Statute of Limitations. Plaintiff's claim is time-barred. In Idaho, an action on a written contract must be commenced within five (5) years (Idaho Code § 5-216), and an action on an oral or unwritten contract or open account within four (4) years (Idaho Code § 5-217). The alleged debt accrued more than the limitations period before suit was filed.

☐ (b) Mistaken Identity / Wrong Defendant / Identity Theft. Defendant is not the person who incurred the alleged debt, or the account is the product of identity theft or fraud. [Attach FTC Identity Theft Report / police report if applicable.]

☐ (c) Wrong Amount / Unauthorized Interest, Fees, and Charges. The amount of the Default Judgment is incorrect, inflated, or includes interest, fees, or charges not authorized by any agreement. Under Idaho Code § 26-2229A, charges incidental to the principal obligation are not collectible unless statutorily or judicially authorized or set out in an approved written agreement. See Medical Recovery Servs., LLC v. Strawn, 156 Idaho 153 (2014).

☐ (d) Paid, Settled, or Discharged. The alleged debt has been paid, settled, released, or discharged (including by discharge in bankruptcy), in whole or in part.

☐ (e) Lack of Standing / No Proof of Assignment. Plaintiff is not the original creditor and has not proven a complete, unbroken chain of assignment of Defendant's specific account from the original creditor to Plaintiff. Plaintiff is not the real party in interest.

☐ (f) Plaintiff Not Licensed Under the Idaho Collection Agency Act. The Idaho Collection Agency Act (Idaho Code §§ 26-2221 to 26-2223) requires a license from the Idaho Department of Finance to operate as a collection agency, to collect for others, or to collect debts acquired while delinquent or in default for one's own account — which expressly includes debt buyers (Idaho Code § 26-2223(6)). To the extent Plaintiff was required to be licensed and was not, Plaintiff is barred from maintaining this action. [verify Plaintiff's licensure with the Idaho Department of Finance.]

☐ 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.

☐ (h) No Account Stated / Inadmissible Records. Defendant never agreed to the balance alleged, and Plaintiff's account records and affidavits are inadmissible hearsay lacking foundation.

11. A proposed Answer asserting these defenses is attached as Exhibit [__] and is tendered with this Motion so the case may proceed on the merits.

VI. AFFIDAVIT OF DEFENDANT IN SUPPORT OF MOTION

STATE OF IDAHO )
COUNTY OF [____________] )

I, [____________], being first duly sworn, depose and state under oath:

1. I am the Defendant in this action and I make this affidavit on personal knowledge. If called as a witness, I could and would competently testify to the facts stated herein.

2. The first time I learned of this lawsuit and/or the default judgment against me was on [__/__/____], when [☐ my wages were garnished / ☐ my bank account was frozen / ☐ I received a court notice / ☐ other: ____________].

3. Regarding service of the summons and complaint: [describe — e.g., "I was never served," "I do not live and did not live at the address listed on the return of service," "the papers were left with a person not authorized to accept service for me," etc.]: [____________________________________].

4. The reason I did not file an answer or appear before the default was entered is: [____________________________________].

5. I acted promptly to seek relief after learning of the default judgment. The facts supporting my meritorious defense(s) are: [____________________________________].

6. I am not seeking to delay these proceedings. I am prepared to file the attached proposed Answer and to defend this case on its merits if the default judgment is set aside.

I declare (or certify, verify, or state) under penalty of perjury pursuant to the law of the State of Idaho that the foregoing is true and correct.

Executed on [__/__/____].

/s/ [____________________________________]
[Printed name]

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

____________________________________
Notary Public for Idaho
My commission expires: [__/__/____]

VII. REQUEST TO STAY EXECUTION AND GARNISHMENT

12. Defendant requests that the Court stay execution of the Default Judgment, including any writ of execution and any wage or bank garnishment, pending the Court's ruling on this Motion, and quash or release any garnishment already issued. Continued collection on a judgment that is void or subject to being vacated would cause Defendant irreparable harm, including loss of wages and funds needed for basic living expenses.

13. ☐ A garnishment of Defendant's [☐ wages / ☐ bank account] is currently in effect and is causing immediate hardship. Defendant requests that the Court order it released and that any funds already withheld be held by the clerk (and not disbursed to Plaintiff) pending the ruling, or returned to Defendant if the Default Judgment is vacated.

VIII. RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that this Court:

A. SET ASIDE the entry of default and VACATE the Default Judgment entered on [__/__/____] pursuant to Idaho R. Civ. P. 55(c) and 60(b);

B. STAY execution of the Default Judgment and QUASH / RELEASE any writ of execution or garnishment, and order any withheld funds held by the clerk or returned to Defendant;

C. GRANT Defendant leave to file the attached proposed Answer and to defend this action on the merits;

D. To the extent the Default Judgment is found VOID for defective service or lack of personal jurisdiction, declare it void and of no effect; and

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

A proposed Order is submitted herewith.

IX. SIGNATURE

Respectfully submitted this [____] day of [____________], 20[____].

/s/ [____________________________________]
[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
Idaho State Bar No. (if attorney): [____________]
[Street Address]
[City], Idaho [____]
Telephone: ([____]) [____]-[________]
Email: [____________________________________]

X. CERTIFICATE OF SERVICE

I hereby certify that on the [____] day of [____________], 20[____], I served a true and correct copy of the foregoing Motion to Set Aside / Vacate Default Judgment, the supporting Affidavit, the proposed Answer, and the proposed Order upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented) by the following method:

☐ Idaho iCourt File & Serve electronic-filing system (notice to all registered users)
☐ U.S. First-Class Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery
☐ Email (per Idaho R. Civ. P. 5)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

IDAHO PRACTICE NOTES

• Authority: Idaho R. Civ. P. 55(c) ("for good cause shown" the court may set aside an entry of default and a default judgment "in accordance with Rule 60(b)") and Idaho R. Civ. P. 60(b).
• Deadline: A Rule 60(b) motion must be made "within a reasonable time," and for grounds (1) mistake/excusable neglect, (2) newly discovered evidence, (3) fraud, and (6) other, not more than six (6) months after entry. A motion to set aside a void judgment (Rule 60(b)(4)) is not subject to the 6-month cap but must be filed within a reasonable time; Rule 60(b) also preserves the power to set aside, within one (1) year, a judgment against a party not personally served who failed to appear. Calendar all dates.
• Void service: A judgment entered without valid service / personal jurisdiction is void and must be vacated; the Court has no discretion to leave a void judgment standing.
• Meritorious defense: For discretionary grounds (e.g., Rule 60(b)(1)), Idaho generally requires the movant to show a meritorious defense in addition to good cause. Tender a proposed Answer.
• Court: District Court (often the magistrate division for consumer collection cases). Verify the assignment and county/district in the judgment.
• Stay: Move to stay execution and to quash/release any garnishment pending the ruling; Idaho execution/garnishment is governed by Idaho Code § 11-101 et seq. and § 11-701 et seq.; exemptions apply.

Sources and References

• Idaho R. Civ. P. 55(c) (setting aside default and default judgment): https://isc.idaho.gov/icr/IRCP_55
• Idaho R. Civ. P. 60(b) (relief from judgment; reasonable time / 6 months; void judgment; 1-year no-personal-service provision): https://isc.idaho.gov/icr/IRCP_60
• Idaho Courts self-help — Motion to Set Aside Default Judgment and Request for Stay of Writ (verbatim Rule 55(c)/60(b) text): https://adacounty.id.gov/clerk/wp-content/uploads/sites/9/2018/10/Motion_Set_Aside_Default_Stay_Writ.pdf
• Idaho R. Civ. P. 4 (service of summons): https://isc.idaho.gov/icr/IRCP_4
• Idaho Code § 5-216 (5-year written contract) / § 5-217 (4-year oral/open account): https://legislature.idaho.gov/statutesrules/idstat/Title5/T5CH2/
• Idaho Code §§ 26-2221 to 26-2223 (Collection Agency Act; debt buyers) / § 26-2229A (incidental charges); Medical Recovery Servs., LLC v. Strawn, 156 Idaho 153 (2014): https://legislature.idaho.gov/statutesrules/idstat/Title26/T26CH22/
• Idaho Code § 11-101 et seq. (execution) / § 11-701 et seq. (garnishment): https://legislature.idaho.gov/statutesrules/idstat/Title11/
• 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 — what to do if you are sued / time-barred debt: https://www.consumerfinance.gov/ask-cfpb/can-debt-collectors-collect-a-debt-thats-several-years-old-en-1423/