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

IN THE DISTRICT COURT OF [____________] COUNTY, KANSAS

[Civil Department / Division / Chapter 61 Limited Action, as applicable]

DEFENDANT'S MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

[K.S.A. § 60-255(b); K.S.A. § 60-260(b); K.S.A. § 61-3301 (limited actions)]

COMES NOW Defendant, [____________] ("Defendant"), appearing [☐ in proper person / ☐ by and through undersigned counsel], and respectfully moves this Court, pursuant to K.S.A. § 60-255(b) and K.S.A. § 60-260(b) (and K.S.A. § 61-3301 if this is a limited action), to set aside and vacate the default judgment entered against Defendant on [__/__/____], to quash any execution, garnishment, or other post-judgment process issued upon it, and to grant Defendant leave to answer and defend on the merits. In support, Defendant states as follows.

I. THE DEFAULT JUDGMENT AT ISSUE

1. Date judgment entered: [__/__/____].

2. Amount of judgment: $[____________] in principal, plus $[________] interest, $[________] costs, and $[________] attorney's fees, for a total of $[____________].

3. Nature of the action: Plaintiff sued Defendant to collect an alleged consumer debt purportedly arising from [credit card / installment loan / medical / other: ____________], allegedly originated by [original creditor: ____________] under account no. [____________].

4. How the default arose: A default judgment was entered because Defendant [did not file a timely answer / did not appear]. Defendant learned of the judgment on [__/__/____] by [garnishment notice / bank levy / credit report / mail / other: ____________].

5. Defendant brings this Motion promptly upon learning of the judgment and within the time allowed by K.S.A. § 60-260(c).

II. LEGAL STANDARD

1. Under K.S.A. § 60-255(b), the court "may set aside a final default judgment under K.S.A. 60-260(b)." A default judgment in a Chapter 61 limited action may likewise be set aside under K.S.A. § 61-3301, applying the K.S.A. 60-260(b) grounds.

2. K.S.A. § 60-260(b) authorizes relief from a final judgment for: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that could not, with reasonable diligence, have been discovered in time to move for a new trial; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or is based on an earlier judgment that has been reversed or vacated, or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

3. Void judgments. A judgment entered without valid service of process and without the defendant's waiver of objection is void for lack of personal jurisdiction. A void judgment is a nullity that may be vacated at any time, and the one-year limit of K.S.A. § 60-260(c)(1) does not apply to a motion under (b)(4). The court obtains jurisdiction over a defendant only through valid service of process under K.S.A. §§ 60-303, 60-304, and 60-308 (or, in limited actions, the Chapter 61 service provisions).

4. Discretion and the preference for trial on the merits. A motion to set aside a default judgment is addressed to the sound discretion of the district court, which exercises that discretion in light of the strong judicial policy favoring resolution of cases on their merits rather than by default. Doubts are generally resolved in favor of the motion so that the defendant may have a day in court.

5. Excusable neglect. Relief under (b)(1) generally requires the movant to show (a) that the default was the product of mistake, inadvertence, surprise, or excusable neglect rather than willful or deliberate conduct, (b) that the motion was timely, and (c) that the movant has a meritorious defense to the claim.

III. GROUNDS FOR SETTING ASIDE THE JUDGMENT

A. ☐ The Judgment Is VOID — Defective Service / No Personal Jurisdiction [K.S.A. § 60-260(b)(4)]

☐ Defendant was never served with the summons and petition as required by K.S.A. §§ 60-303, 60-304, and 60-308 (or the Chapter 61 service provisions).

☐ Service was attempted at an address where Defendant did not reside and had not resided as of the date of service: [____________].

☐ The return of service is false, defective, or shows service on a person not authorized to accept service for Defendant.

☐ Service was by publication under K.S.A. § 60-307, but Defendant was not in fact unlocatable and Plaintiff did not exercise the required due diligence; Defendant was not personally notified and is entitled to have the judgment opened under K.S.A. § 60-309 (preserved by K.S.A. § 60-260(d)(2)).

☐ Defendant did not waive any objection to personal jurisdiction or service.

Because the Court never acquired personal jurisdiction over Defendant, the default judgment is void and must be set aside; the one-year limit does not apply.

B. ☐ Mistake, Inadvertence, Surprise, or Excusable Neglect [K.S.A. § 60-260(b)(1)]

☐ Defendant did not receive actual notice of the suit in time to respond because [moved / mail not forwarded / served on family member who did not deliver / illness / other: ____________].

☐ Defendant reasonably but mistakenly believed [the debt had been paid/settled / it was identity theft and not Defendant's debt / the matter was being handled by counsel or a third party].

☐ The failure to answer was not willful or in bad faith and was the result of excusable neglect.

C. ☐ Fraud, Misrepresentation, or Misconduct by Plaintiff [K.S.A. § 60-260(b)(3)]

☐ Plaintiff or its agent misrepresented the facts of service, the existence or amount of the debt, or Plaintiff's ownership of the debt to obtain the judgment.

☐ Plaintiff submitted a "robo-signed" or false affidavit, or obtained judgment on a debt it knew to be time-barred, paid, or not owed by Defendant.

D. ☐ Newly Discovered Evidence [K.S.A. § 60-260(b)(2)]

☐ Evidence material to Defendant's defense — e.g., proof of payment, a settlement/release, a bankruptcy discharge, or an identity-theft report — has come to light that could not, with reasonable diligence, have been presented earlier. (Attached as Exhibit [__].)

E. ☐ Any Other Reason Justifying Relief [K.S.A. § 60-260(b)(6)]

☐ Exceptional circumstances warrant relief in the interest of justice: [____________].

IV. MERITORIOUS DEFENSE

Defendant has one or more meritorious defenses that, if the judgment is set aside, would be presented in an answer:

☐ Statute of limitations / time-barred debt. The alleged debt was already barred by the applicable Kansas statute of limitations when suit was filed. Kansas applies a [☐ 5-year period for written contracts, K.S.A. § 60-511; ☐ 3-year period for unwritten/oral contracts and open accounts, K.S.A. § 60-512]. The action accrued on or about [__/__/____] (date of default / last payment), more than the limitations period before suit was filed. Confirm the controlling period and accrual date for this account type.

☐ Wrong defendant / identity theft / mistaken identity. Defendant is not the person who incurred the debt; the account was opened or used through identity theft or mistaken identity. Defendant did not apply for, use, or authorize the account.

☐ Wrong amount / unauthorized fees. The amount of the judgment is incorrect, inflated, or includes interest, fees, or charges not authorized by the underlying agreement or by law.

☐ Paid, settled, or discharged. The debt has been paid in full or in part, was settled or released, or was discharged in bankruptcy (Case No. [____________], discharged [__/__/____]).

☐ Lack of standing / no proof of assignment. Plaintiff is a debt buyer or assignee that has not proven a complete, unbroken chain of title from the original creditor, including each bill of sale and an assignment specifically identifying Defendant's account. Plaintiff is not the real party in interest and cannot prove it owns the debt.

☐ 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.

☐ No account documentation. Plaintiff cannot produce the signed agreement, account statements, or admissible business records establishing the existence, ownership, or amount of the debt.

☐ Other meritorious defense: [____________].

The factual basis for the selected defense(s) is set out in Defendant's accompanying Affidavit and proposed Answer (attached as Exhibit [__]).

V. REQUEST TO STAY EXECUTION, GARNISHMENT, AND OTHER POST-JUDGMENT PROCESS

1. Defendant requests that the Court stay enforcement of the default judgment pending determination of this Motion, including any wage or bank garnishment, execution, or attachment.

2. Plaintiff has [☐ commenced / ☐ threatened] post-judgment collection by [☐ wage garnishment / ☐ nonwage (bank) garnishment / ☐ execution / ☐ other: ____________], served on or about [__/__/____]. Continued enforcement while this Motion is pending would cause Defendant irreparable harm by [seizing exempt wages or funds / depriving Defendant of funds needed for necessities].

3. Defendant requests that the Court quash or recall any garnishment order or execution issued upon the judgment, and direct that any funds already withheld be held pending the Court's ruling or returned to Defendant.

VI. RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that the Court:

a. SET ASIDE and VACATE the default judgment entered on [__/__/____] pursuant to K.S.A. § 60-255(b) and K.S.A. § 60-260(b) (and K.S.A. § 61-3301, if applicable);

b. STAY enforcement of the judgment and QUASH any garnishment, execution, or other post-judgment process issued upon it, and order the return of any funds wrongfully withheld;

c. GRANT Defendant leave to file the answer attached as Exhibit [__] and to defend the action on the merits;

d. If the judgment is found void for lack of personal jurisdiction, declare it a nullity and DISMISS the action for insufficient service of process; and

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

VII. PROPOSED ORDER

A proposed Order granting this Motion is submitted herewith for the Court's consideration.

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

/s/ [____________________________________]
[____________________________________]
☐ Defendant, in proper person ☐ Attorney for Defendant
Kansas Bar No. (if attorney): [____________]
[Firm Name, if any]
[Street Address]
[City], Kansas [____]
Telephone: ([____]) [____]-[________]
Email: [____________________________________]

VIII. DEFENDANT'S AFFIDAVIT IN SUPPORT

STATE OF KANSAS )
) ss.
COUNTY OF [____________] )

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

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

2. I first learned of this lawsuit and/or the default judgment against me on [__/__/____], when [____________].

3. [Regarding service:] I was not served with the summons and petition in this case. ☐ I did not reside at the address where service was attempted ([____________]) on the date of purported service. ☐ The person who allegedly accepted service was not authorized to accept it for me and did not deliver it to me. ☐ Other: [____________].

4. [Regarding the failure to respond:] My failure to answer was not willful. It resulted from [____________], which constitutes mistake, inadvertence, surprise, or excusable neglect.

5. [Regarding the meritorious defense:] I have a valid defense to this claim, namely: [____________]. (For example: I do not owe this debt; the account is not mine; the debt was paid/settled/discharged; the amount is wrong; the claim was time-barred; or Plaintiff does not own the debt.)

6. I act promptly and in good faith. If the judgment is set aside, I will file the attached Answer and defend this action on the merits.

7. I request that the Court set aside the default judgment, stay and quash any garnishment or execution, and grant me leave to defend.

Further affiant sayeth not.

/s/ [____________________________________]
[____________], Affiant

Subscribed and sworn to before me this [____] day of [____________], 20[____].

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

IX. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I served the foregoing Motion to Set Aside / Vacate Default Judgment (with affidavit and proposed Order) upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented), in accordance with K.S.A. § 60-205, by:

☐ Kansas eFlex / electronic service
☐ U.S. Mail, First-Class, postage prepaid
☐ Email (by agreement / where permitted)
☐ Hand delivery

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

KANSAS PRACTICE NOTES

• Authority: A final default judgment is set aside under K.S.A. § 60-255(b), which applies the grounds in K.S.A. § 60-260(b). In Chapter 61 limited actions (where most consumer debt suits are filed), see K.S.A. § 61-3301, which likewise applies the 60-260(b) grounds.
• Deadline: Reasonable time generally; for grounds (b)(1) mistake/excusable neglect, (b)(2) newly discovered evidence, and (b)(3) fraud — no more than one year after entry of judgment (K.S.A. § 60-260(c)(1)). A motion to vacate a void judgment under (b)(4) is not subject to the one-year cap.
• Void service rule: A judgment entered without valid service and without waiver of jurisdiction is void and may be vacated at any time; the court obtains personal jurisdiction only through proper service (K.S.A. §§ 60-303, 60-304, 60-308; service by publication, §§ 60-307, 60-309).
• Meritorious defense: Generally required for excusable-neglect relief; not required to vacate a void judgment, but assert it as alternative support.
• Stay/garnishment: Request a stay of enforcement and ask the Court to quash any garnishment or execution; note Kansas wage-garnishment limits (K.S.A. § 60-2310) and exempt funds.
• Proper court: District Court of the county where the action was filed; confirm whether it is a Chapter 60 or Chapter 61 matter and the assigned division's local rules.

SOURCES & REFERENCES

• K.S.A. § 60-255 — Default; setting aside a default judgment under 60-260(b): https://ksrevisor.gov/statutes/chapters/ch60/060_002_0055.html
• K.S.A. § 60-260 — Relief from judgment or order (grounds; one-year limit for (b)(1)-(3); void judgments): https://ksrevisor.gov/statutes/chapters/ch60/060_002_0060.html
• K.S.A. § 60-309 — Opening default judgment rendered on service by publication.
• K.S.A. § 60-205 — Service and filing of pleadings and other papers.
• K.S.A. § 61-3301 — Setting aside default judgment in limited actions.
• K.S.A. §§ 60-511, 60-512 — Statutes of limitation (5-year written contract; 3-year unwritten contract/open account) — verify the controlling period for the account.
• 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/