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

STATE OF MAINE

[____________], ss. [DISTRICT / SUPERIOR] COURT

Location: [____________] Docket No. [____________]

DEFENDANT'S MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

[M.R. Civ. P. 55(c); M.R. Civ. P. 60(b)]

NOW COMES Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by counsel], and respectfully moves this Court, pursuant to Maine Rules of Civil Procedure 55(c) and 60(b), to set aside and vacate the default judgment entered against Defendant on [__/__/____], to stay and dissolve any execution, disclosure, trustee process, or wage garnishment 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 / student loan / other: ____________], allegedly originated by [original creditor: ____________] under account no. [____________].

4. How the default arose: A default and/or default judgment was entered because Defendant [did not file a timely answer / did not appear]. Defendant first learned of the judgment on [__/__/____] by [disclosure subpoena / trustee process / wage garnishment / credit report / mail / other: ____________].

5. Defendant brings this Motion promptly, for good cause, and within the time allowed by M.R. Civ. P. 60(c).

II. LEGAL STANDARD

1. M.R. Civ. 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)."

2. M.R. Civ. P. 60(b) authorizes the court, on motion and upon such terms as are just, 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 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 (6) any other reason justifying relief from the operation of the judgment.

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 Rule 60(b)(4) and is not subject to the one-year limit of Rule 60(c)(1). The court acquires jurisdiction over a defendant only through service of process in compliance with M.R. Civ. P. 4.

4. "Good cause" / preference for the merits. Maine courts apply a policy favoring decision on the merits. To set aside a default judgment for good cause, the moving party generally must show (a) a good excuse for the default (mistake, inadvertence, surprise, or excusable neglect, and not willful disregard) and (b) the existence of a meritorious defense to the claim.

5. Special protection in debt-collection cases. Under M.R. Civ. P. 55(a)(1) and 55(b)(1), the clerk may not enter a default or a default judgment in (A) a collection action brought by a "debt buyer," or (B) a debt-collection action based on credit-card or student-loan debt brought by a "debt collector," as those terms are defined in 32 M.R.S. Chapter 109-A; only the court may do so. Rule 55(b)(4) further bars entry of a default judgment in such actions except on the court's review of the plaintiff's proof. If the default judgment against Defendant was entered without that required review, or by the clerk in violation of Rule 55, it was improvidently entered and should be set aside.

III. GROUNDS FOR SETTING ASIDE THE JUDGMENT

A. ☐ The Judgment Is VOID — Defective Service / No Personal Jurisdiction [M.R. Civ. P. 60(b)(4)]

☐ Defendant was never served with the summons and complaint as required by M.R. Civ. P. 4.

☐ 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 publication or other 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 Rule 60(b)(4); the one-year limit does not apply.

B. ☐ Mistake, Inadvertence, Surprise, or Excusable Neglect [M.R. Civ. P. 60(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 constitutes excusable neglect.

C. ☐ Default Entered in Violation of Rule 55 (Debt-Buyer / Debt-Collector Action) [M.R. Civ. P. 60(b)(6); Rule 55(a)-(b)]

☐ This is a collection action by a "debt buyer," or a credit-card/student-loan debt-collection action by a "debt collector," under 32 M.R.S. Chapter 109-A, in which the clerk was prohibited from entering a default or default judgment, and/or the court entered judgment without the proof review required by Rule 55. The judgment was improvidently entered and should be set aside.

D. ☐ Fraud, Misrepresentation, or Misconduct by Plaintiff [M.R. Civ. P. 60(b)(3)]

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

E. ☐ Newly Discovered Evidence [M.R. Civ. P. 60(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, by due diligence, have been discovered in time. (Attached as Exhibit [__].)

F. ☐ Any Other Reason Justifying Relief [M.R. Civ. P. 60(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 Maine statute of limitations when suit was filed. Maine's general civil limitations period is six (6) years (14 M.R.S. § 752); for certain instruments other periods apply. 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 (M.R. Civ. P. 17(a)) and cannot prove it owns the debt. (Note the proof requirements applicable to debt-buyer/debt-collector actions under 32 M.R.S. ch. 109-A and M.R. Civ. P. 55(b)(4).)

☐ 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, DISCLOSURE, TRUSTEE PROCESS, AND GARNISHMENT

1. Defendant requests that the Court stay enforcement of the default judgment pending determination of this Motion, including any disclosure proceeding, trustee process, wage garnishment, or execution.

2. Plaintiff has [☐ commenced / ☐ threatened] post-judgment collection by [☐ disclosure subpoena (14 M.R.S. § 3120 et seq.) / ☐ trustee process / ☐ wage garnishment (installment payment order) / ☐ execution / ☐ other: ____________], served or filed 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 stay, dissolve, or recall any disclosure order, trustee process, installment-payment/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 [__/__/____] (and any underlying entry of default) pursuant to M.R. Civ. P. 55(c) and 60(b);

b. STAY, DISSOLVE, or RECALL any disclosure order, trustee process, garnishment/installment order, or execution issued upon the judgment, 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.

Dated at [____________], Maine, this [____] day of [____________], 20[____].

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

VIII. DEFENDANT'S AFFIDAVIT IN SUPPORT

STATE OF MAINE
COUNTY OF [____________], ss.

I, [____________], being 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 dissolve any disclosure, trustee process, garnishment, or execution, and grant me leave to defend.

/s/ [____________________________________]
[____________], Affiant

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

____________________________________
Notary Public / Attorney-at-Law
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 M.R. Civ. P. 5, by:

☐ Maine courts electronic-filing/service system (where available)
☐ U.S. Mail, First-Class, postage prepaid
☐ Email (by agreement / where permitted)
☐ Hand delivery

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

MAINE PRACTICE NOTES

• Authority: A default judgment is set aside "for good cause shown ... in accordance with Rule 60(b)" (M.R. Civ. P. 55(c)). Rule 60(b) supplies the grounds; Rule 60(c) supplies the timing.
• Deadline: Reasonable time generally; for reasons (1) mistake/excusable neglect, (2) newly discovered evidence, and (3) fraud — no more than one year after entry (M.R. Civ. P. 60(c)(1)). A motion to vacate a void judgment under Rule 60(b)(4) is not subject to the one-year cap.
• Void service rule: A judgment entered without valid service and without appearance/waiver is void for lack of personal jurisdiction (Rule 60(b)(4)); the court acquires jurisdiction only through proper service under M.R. Civ. P. 4.
• Debt-collection safeguard: Under M.R. Civ. P. 55(a)(1), (b)(1), and (b)(4), the clerk may not enter a default or default judgment in a collection action by a "debt buyer," or in a credit-card/student-loan debt-collection action by a "debt collector," under 32 M.R.S. ch. 109-A; the court may do so only after reviewing the plaintiff's proof. A judgment entered contrary to these limits is a strong basis to set it aside.
• Good cause / meritorious defense: Maine courts require a good excuse for the default and a meritorious defense; the meritorious defense is not required to vacate a void judgment.
• Stay/collection: Maine enforces judgments chiefly through the disclosure process (14 M.R.S. § 3120 et seq.) and trustee process; request a stay and ask the Court to dissolve any disclosure order, trustee process, garnishment/installment order, or execution. Note exempt wages/funds.
• Proper court: Most consumer debt suits are District Court matters; confirm the court, county/location, and local rules.

SOURCES & REFERENCES

• M.R. Civ. P. 55 — Default (clerk barred from default in debt-buyer/debt-collector collection actions under 32 M.R.S. ch. 109-A; setting aside default under Rule 60(b)): https://www.courts.maine.gov/rules/text/MRCivPPlus/mr_civ_p_55_plus_2022-10-11.pdf
• M.R. Civ. P. 60 — Relief from judgment or order (grounds; one-year limit for (1)-(3); void judgments): https://www.courts.maine.gov/rules/text/MRCivPPlus/RULE%2060.pdf
• M.R. Civ. P. 4 — Process / service of summons and complaint.
• 32 M.R.S. Chapter 109-A — Maine Fair Debt Collection Practices Act (definitions of "debt buyer" and "debt collector"; proof requirements).
• 14 M.R.S. § 752 — general six-year limitations period — verify the controlling period for the account.
• 14 M.R.S. § 3120 et seq. — post-judgment disclosure; exemptions.
• 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/