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

IN THE [____________] COURT OF [____________] COUNTY, MISSISSIPPI

Civil Action No. [____________]

MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

Filed Pursuant to Miss. 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 Miss. R. Civ. P. 55(c) and 60(b), to set aside and vacate the default judgment entered against Defendant on [__/__/____], to quash any writ of execution or garnishment issued upon that judgment, and to grant Defendant leave to defend this action on the merits. In support, Defendant states:

I. PROCEDURAL BACKGROUND AND IDENTIFICATION OF THE DEFAULT JUDGMENT

1. On [__/__/____], Plaintiff filed a Complaint against Defendant seeking to collect an alleged consumer debt in the amount of $[____________], plus interest, fees, and costs.

2. Defendant did not file a timely Answer, and on [__/__/____] the Court entered [☐ an entry of default / ☐ a default judgment] against Defendant in the amount of $[____________] (the "Default Judgment").

3. Defendant first learned of the Default Judgment on [__/__/____], by the following means: [____________] (e.g., a garnishment notice, a bank levy, a credit-report entry, a letter from Plaintiff's counsel).

4. This Motion is filed within [☐ six (6) months of entry of the Default Judgment / ☐ a reasonable time after Defendant learned of the Default Judgment], as permitted by Miss. R. Civ. P. 60(b).

II. LEGAL STANDARD

5. Rule 55(c) and Rule 60(b). Under Miss. R. Civ. P. 55(c), a default judgment may be set aside "in accordance with Rule 60(b)." Rule 60(b) permits the Court to relieve a party from a final judgment for, among other grounds: (1) fraud, misrepresentation, or other misconduct of an adverse party; (2) accident or mistake; (3) newly discovered evidence; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; and (6) any other reason justifying relief from the operation of the judgment.

6. The three-factor balancing test. The Mississippi Supreme Court applies a three-pronged balancing test in deciding whether to set aside a default judgment under Rule 60(b): (1) whether the defendant has a colorable (meritorious) defense to the merits; (2) the nature and extent of the prejudice that would be suffered by the plaintiff if the default judgment were set aside; and (3) whether good cause exists for the defendant's failure to timely respond. The first factor — the existence of a colorable defense — is the most important and predominant, and Mississippi public policy strongly favors resolution of cases on their merits.

7. Void judgments stand on different footing. A judgment entered without valid service of process is void for lack of personal jurisdiction, and a court has no discretion to refuse to set aside a void judgment — the three-factor balancing test does not apply. Where service did not comply with Miss. R. Civ. P. 4, the Default Judgment must be vacated.

III. GROUNDS FOR RELIEF

Defendant moves to set aside the Default Judgment on the ground(s) checked below. Select only those grounds supported by the facts.

☐ A. The Judgment Is Void — Defective Service of Process / No Personal Jurisdiction. Defendant was never properly served with the summons and Complaint in compliance with Miss. R. Civ. P. 4. Specifically: [____________] (e.g., Defendant did not reside at the address served; no copy was left with a suitable person; "sewer service" — service was falsely sworn but never made; Defendant had moved; the person served was not authorized). Because valid service is a prerequisite to personal jurisdiction, the Default Judgment is void and must be set aside under Miss. R. Civ. P. 60(b)(4), and any garnishment or execution upon it is likewise void.

☐ B. Excusable Neglect / Accident or Mistake / Good Cause. Defendant's failure to timely respond was the result of excusable neglect, accident, or mistake, not willful disregard of the Court's process. Specifically: [____________] (e.g., Defendant was hospitalized or seriously ill; the summons was misplaced by a household member; Defendant reasonably believed the matter had been settled or that the wrong person had been sued; Defendant was misled). Good cause exists to set aside the Default Judgment under Rule 55(c) and Rule 60(b).

☐ C. Meritorious (Colorable) Defense. Defendant has one or more colorable defenses to Plaintiff's claim, as set forth in Section IV below and in the attached Affidavit.

☐ D. Fraud, Misrepresentation, or Misconduct of an Adverse Party. The Default Judgment was procured through fraud, misrepresentation, or misconduct, including [____________] (e.g., a false affidavit/return of service; a "robo-signed" affidavit of indebtedness; misrepresentation of the amount owed or of ownership of the debt). Miss. R. Civ. P. 60(b)(1).

☐ E. Newly Discovered Evidence. Evidence material to Defendant's defense — which could not, by due diligence, have been discovered in time — has come to light: [____________]. Miss. R. Civ. P. 60(b)(3).

☐ F. Any Other Reason Justifying Relief. [____________]. Miss. R. Civ. P. 60(b)(6).

IV. MERITORIOUS DEFENSE (DEBT-SPECIFIC)

8. Defendant has a colorable defense to Plaintiff's claim. Without limiting any defense, Defendant asserts the following (check all that apply):

☐ Statute of Limitations / Time-Barred Debt. The alleged debt is barred by the applicable Mississippi statute of limitations — generally three (3) years for an open account, account stated not signed in writing, or unwritten contract (Miss. Code § 15-1-29), and three (3) years under the catch-all (Miss. Code § 15-1-49). The debt accrued on or about [__/__/____], more than the limitations period before suit was filed.

☐ Wrong Defendant / Mistaken Identity / Identity Theft. Defendant is not the person who incurred the alleged debt. The account was opened by another person, or as a result of identity theft, fraud, or mixed credit files. [____________]

☐ Incorrect Amount. The amount of the Default Judgment is wrong, inflated, or includes unauthorized interest, fees, or charges. [____________]

☐ Paid / Settled / Discharged. The alleged debt has been paid, settled, released, or discharged (including by discharge in bankruptcy on [__/__/____], Case No. [____________]).

☐ Lack of Standing / No Valid Assignment. Plaintiff is a debt buyer that has not proven a complete, unbroken chain of assignment from the original creditor and is not the real party in interest entitled to enforce the alleged 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.

☐ Other Defense. [____________]

9. These defenses raise a real controversy as to the essential facts and are worthy of judicial inquiry. Adjudication on the merits, rather than by default, is favored under Mississippi law.

V. ABSENCE OF PREJUDICE TO PLAINTIFF

10. Setting aside the Default Judgment will not prejudice Plaintiff in any cognizable way. The relevant inquiry is the future prejudice from reopening the judgment, not delay or expense already incurred. Plaintiff retains all of its evidence and witnesses, no trial date has been lost, and Defendant is prepared to litigate promptly. Any minimal delay is outweighed by Defendant's right to be heard on the merits.

VI. DEFENDANT'S AFFIDAVIT

STATE OF MISSISSIPPI
COUNTY OF [____________]

I, [____________], being first duly sworn, depose and state as follows:

1. I am the Defendant in the above-captioned action. I am over the age of eighteen, am competent to testify, and make this Affidavit on personal knowledge.

2. [State the facts about service — e.g., "I was never served with the summons and Complaint. I did not live at [address] on the date service is claimed. I first learned of this lawsuit on [__/__/____] when [____________]."]

3. [State the facts establishing good cause / excusable neglect, if applicable — e.g., "My failure to respond was due to [____________] and was not intentional."]

4. [State the facts establishing the meritorious defense — e.g., "I do not owe this debt because [____________]," or "The last payment or activity on this account was on or about [__/__/____], more than three years before suit was filed," or "I am the victim of identity theft and did not open this account."]

5. I am ready and able to defend this action on the merits and request leave to file an Answer.

FURTHER AFFIANT SAYETH NAUGHT.

_______________________________________
[____________], Affiant

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

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

VII. REQUEST TO STAY EXECUTION AND GARNISHMENT

11. Defendant requests that the Court stay all execution, garnishment, attachment, and other enforcement of the Default Judgment pending determination of this Motion. Miss. R. Civ. P. 62; Miss. Code § 11-35-1 et seq. (garnishment).

12. Plaintiff has commenced or threatened the following enforcement measures: [☐ wage garnishment / ☐ bank-account garnishment or levy / ☐ writ of execution / ☐ judgment lien / ☐ other: [____________]]. Continued enforcement of a judgment that is void or that was entered without an opportunity to defend would cause Defendant irreparable harm, including loss of exempt wages and funds.

VIII. RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that this Court:

A. SET ASIDE and VACATE the Default Judgment entered on [__/__/____];

B. STAY all execution, garnishment, and enforcement of the Default Judgment pending determination of this Motion, and QUASH any writ of garnishment or execution already issued;

C. GRANT Defendant leave to file an Answer and to defend this action on the merits within [____] days of the order;

D. In the case of a void judgment, DISMISS the action for insufficient service of process and lack of personal jurisdiction, without prejudice;

E. AWARD Defendant costs and, to the extent permitted by law, attorney's fees; and

F. GRANT such other and further relief as the Court deems just and proper.

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

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

IX. PROPOSED ORDER

A proposed Order Setting Aside Default Judgment is submitted herewith. The proposed Order provides that the Default Judgment entered [__/__/____] is set aside and vacated; that any writ of garnishment or execution is quashed and all enforcement stayed; and that Defendant is granted leave to file an Answer within [____] days.

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 (with proposed Order and Affidavit) upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented) in accordance with Miss. R. Civ. P. 5, by the following method:

☐ Mississippi Electronic Courts (MEC) electronic-filing system (notice to all counsel of record)
☐ U.S. First-Class Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery
☐ Email (by agreement / where permitted)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

MISSISSIPPI PRACTICE NOTES

• Authority: Miss. R. Civ. P. 55(c) (set aside default for good cause / a default judgment in accordance with Rule 60(b)); Miss. R. Civ. P. 60(b) (grounds for relief from judgment).
• Deadline: Rule 60(b)(1)–(3) motions (fraud/misrepresentation/misconduct; accident or mistake; newly discovered evidence) must be made within SIX (6) MONTHS after entry of the judgment. A motion that the judgment is VOID (Rule 60(b)(4)) or under the catch-all Rule 60(b)(6) must be made within a reasonable time (no fixed 6-month cap). File promptly. Verify current rule text.
• Standard: Three-factor balancing test — (1) colorable/meritorious defense (the predominant factor), (2) prejudice to the plaintiff, and (3) good cause for the default. Mississippi favors decisions on the merits.
• Void-service rule: A default judgment entered without valid service under Miss. R. Civ. P. 4 is void for lack of personal jurisdiction and must be set aside; the discretionary balancing test does not apply, and a void judgment will not support a garnishment.
• Court: File in the court that entered the judgment — Circuit, County, or Justice Court. Confirm the court and case number on the judgment.
• Stay/garnishment: Request a stay under Miss. R. Civ. P. 62 and seek to quash garnishment (Miss. Code § 11-35-1 et seq.). Federal and state exemptions (e.g., 15 U.S.C. § 1673; exempt federal benefits) may protect wages and funds.
• SOL on debt: open account / account stated not signed / unwritten contract — 3 years (Miss. Code § 15-1-29); catch-all — 3 years (Miss. Code § 15-1-49). Confirm characterization and accrual.

Sources and References

• Mississippi Rules of Civil Procedure (Rules 4, 55, 60, 62): https://courts.ms.gov/rules/msrulesofcourt/rules_of_civil_procedure.pdf
• Miss. R. Civ. P. 60(b) — relief from judgment; six-month limit for (b)(1)–(3): https://courts.ms.gov/rules/msrulesofcourt/rules_of_civil_procedure.pdf
• Miss. Code § 11-35-1 et seq. (garnishment): https://law.justia.com/codes/mississippi/title-11/chapter-35/
• Miss. Code § 15-1-29 (3-year — open account / unwritten contract): https://law.justia.com/codes/mississippi/title-15/chapter-1/section-15-1-29/
• 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 a debt collector sues you / default judgments: https://www.consumerfinance.gov/ask-cfpb/what-should-i-do-when-a-debt-collector-contacts-me-en-1695/

This template is provided by ezel.ai for informational purposes only. It does not constitute legal advice and should not be used without review and customization by a licensed Mississippi attorney. Court rules and deadlines change; verify all citations and the applicable deadline before filing.