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

COMMONWEALTH OF KENTUCKY

[____________] [CIRCUIT / DISTRICT] COURT

[Division ____]

DEFENDANT'S MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

[CR 55.02; CR 60.02]

COMES the Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by counsel], and respectfully moves the Court, pursuant to Kentucky Rules of Civil Procedure (CR) 55.02 and 60.02, to set aside and vacate the default judgment entered against Defendant on [__/__/____], to stay and 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 first learned of the judgment on [__/__/____] by [garnishment / bank levy / credit report / mail / other: ____________].

5. Defendant brings this Motion promptly, for good cause, and within the time allowed by CR 60.02.

II. LEGAL STANDARD

1. CR 55.02 provides: "For good cause shown the court may set aside a judgment by default in accordance with Rule 60.02."

2. CR 60.02 authorizes the court, upon such terms as are just, to relieve a party from a final judgment on the grounds of: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under CR 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment on which it is based has been reversed or vacated, or it is no longer equitable that the judgment have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion must be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after entry.

3. Void judgments. A judgment entered without valid service of process and without the defendant's appearance or waiver is void for lack of personal jurisdiction. A void judgment may be set aside under CR 60.02(e) and is not subject to the one-year limit. The court acquires jurisdiction over a defendant only through service of process in compliance with CR 4.01 et seq.

4. "Good cause" / preference for the merits. Kentucky courts apply a strong policy favoring decision on the merits over default. In determining whether to set aside a default judgment for good cause under CR 55.02, courts consider: (1) whether the defendant has a valid excuse for the default; (2) whether the defendant has a meritorious defense; and (3) the absence of prejudice to the plaintiff if the judgment is set aside.

III. GROUNDS FOR SETTING ASIDE THE JUDGMENT

A. ☐ The Judgment Is VOID — Defective Service / No Personal Jurisdiction [CR 60.02(e)]

☐ Defendant was never served with the summons and complaint as required by CR 4.01 et seq.

☐ 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 or defective, or service was made on a person not authorized to accept service for Defendant.

☐ Service was by warning order attorney / constructive service, but Plaintiff did not exercise the required diligence to locate Defendant, and Defendant received no actual notice.

☐ Defendant did not appear in the action or otherwise 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 under CR 60.02(e); the one-year limit does not apply.

B. ☐ Mistake, Inadvertence, Surprise, or Excusable Neglect [CR 60.02(a)]

☐ 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 constitutes excusable neglect.

C. ☐ Fraud Affecting the Proceedings / Perjury or Falsified Evidence [CR 60.02(c), (d)]

☐ Plaintiff or its agent obtained the judgment through fraud, perjury, or falsified evidence — e.g., a false return of service, a "robo-signed" affidavit, or misrepresentation of the debt's existence, amount, or ownership.

D. ☐ Newly Discovered Evidence [CR 60.02(b)]

☐ 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, by due diligence, have been discovered in time. (Attached as Exhibit [__].)

E. ☐ Any Other Reason of an Extraordinary Nature [CR 60.02(f)]

☐ Extraordinary circumstances justify 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 Kentucky statute of limitations when suit was filed. Kentucky applies a [☐ 15-year/now generally 10-year period for written contracts, KRS 413.090/413.160; ☐ 5-year period for unwritten contracts, KRS 413.120; ☐ other] period; in addition, KRS 413.310 may apply a borrowing-statute analysis. The action accrued on or about [__/__/____] (date of default / last payment), more than the limitations period before suit. 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 (CR 17.01) 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 CR 55.02 and CR 60.02;

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. NOTICE OF MOTION / HEARING

This Motion shall be heard before the [____________] [Circuit/District] Court on [__/__/____] at [____] [a.m./p.m.], or as soon thereafter as counsel may be heard.

VIII. PROPOSED ORDER

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

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

/s/ [____________________________________]
[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
KBA No. (if attorney): [____________]
[Firm Name, if any]
[Street Address]
[City], Kentucky [____]
Telephone: ([____]) [____]-[________]
Email: [____________________________________]

IX. DEFENDANT'S AFFIDAVIT IN SUPPORT

COMMONWEALTH OF KENTUCKY )
) ss.
COUNTY OF [____________] )

I, [____________], being first duly sworn, 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 complaint 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 naught.

/s/ [____________________________________]
[____________], Affiant

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

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

X. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I served the foregoing Motion to Set Aside / Vacate Default Judgment (with affidavit and tendered Order), and notice of the hearing, upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented), in accordance with CR 5, by:

☐ Kentucky Court of Justice eFiling (electronic service)
☐ U.S. Mail, First-Class, postage prepaid
☐ Email (by agreement / where permitted)
☐ Hand delivery

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

KENTUCKY PRACTICE NOTES

• Authority: A default judgment is set aside "for good cause shown" under CR 55.02, "in accordance with Rule 60.02." CR 60.02 supplies the grounds and the timing.
• Deadline: Reasonable time generally; on grounds (a) mistake/excusable neglect, (b) newly discovered evidence, and (c) perjury/falsified evidence — no more than one year after entry. A motion to vacate a void judgment under CR 60.02(e) is not subject to the one-year cap (but must be within a reasonable time).
• Void service rule: A judgment entered without valid service and without appearance/waiver is void for lack of personal jurisdiction (CR 60.02(e)); the court acquires jurisdiction only through proper service under CR 4.01 et seq.
• Good cause / meritorious defense: Kentucky courts weigh a valid excuse, a meritorious defense, and absence of prejudice. A meritorious defense is part of the showing for excusable-neglect relief but is not required to vacate a void judgment.
• Independent action: CR 60.03 preserves an independent action for relief from a judgment where CR 60.02 relief is unavailable.
• Stay/garnishment: Request a stay and ask the Court to quash any garnishment or execution; note Kentucky wage-garnishment limits (KRS 427.005-427.010) and exempt funds.
• Proper court: Most consumer debt suits are District Court matters; larger claims are in Circuit Court. Confirm the court, county, division, and local motion-practice rules.

SOURCES & REFERENCES

• CR 55.02 — Setting aside default judgment for good cause, in accordance with CR 60.02.
• CR 60.02 — Relief from final judgment (mistake/excusable neglect; newly discovered evidence; perjury; fraud; void/satisfied; extraordinary reason; one-year limit for (a)-(c)): https://govt.westlaw.com/kyrules/Document/NC35C7B00A91B11DA8F5EE32367A250AE
• CR 60.03 — Independent action for relief from judgment.
• CR 4.01 et seq. — Summons and service of process.
• Brown v. Funk, No. 2023-CA-0576-MR (Ky. App. May 10, 2024) — discussing CR 55.02 / CR 60.02(a), (f) timing for setting aside a default judgment: https://caselaw.findlaw.com/court/ky-court-of-appeals/116162102.html
• KRS 413.090, 413.120, 413.160, 413.310 — limitations / borrowing statute — 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/