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

MONTANA [____] JUDICIAL DISTRICT COURT, [____________] COUNTY

Cause No. [____________]

MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

Filed Pursuant to Mont. 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 Mont. R. Civ. P. 55(c) and 60(b), to set aside and vacate the default judgment entered against Defendant on [__/__/____], to quash any execution or garnishment issued upon that judgment, and to grant Defendant leave to answer and defend 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 under Mont. R. Civ. P. 55(a) / ☐ 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 writ of execution, a wage or bank garnishment, a credit-report entry, a letter from Plaintiff's counsel).

4. This Motion is filed within [☐ one (1) year of entry of the Default Judgment / ☐ a reasonable time after Defendant learned of the Default Judgment], as permitted by Mont. R. Civ. P. 60(c).

II. LEGAL STANDARD

5. Rule 55(c) and Rule 60(b). Mont. R. Civ. P. 55(c) provides that the court "may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b)." Rule 60(b) permits relief from a final judgment for: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason that justifies relief.

6. "Good cause" and Montana's preference for the merits. Montana courts liberally apply the good-cause standard and favor a trial on the merits over default. In evaluating a motion to set aside a default judgment, Montana courts consider whether the defaulting party proceeded with diligence, whether the defendant's neglect was excusable, and whether the defendant has a meritorious defense, mindful that good public policy favors resolving disputes on their merits and that only a slight abuse of discretion need be shown to warrant reversal of an order refusing to set a default aside.

7. Void judgments stand on different footing. A judgment entered without valid service of process is void for lack of personal jurisdiction. A court has no discretion to refuse relief from a void judgment under Mont. R. Civ. P. 60(b)(4); the discretionary good-cause analysis does not apply, and a void judgment must be set aside.

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 / No Personal Jurisdiction. Defendant was never properly served with the summons and Complaint in compliance with Mont. R. Civ. P. 4. Specifically: [____________] (e.g., Defendant did not reside at the address served; the papers were left with a person not of suitable age and discretion residing at the dwelling; "sewer service" — the return was falsely sworn; Defendant had moved). The Default Judgment is therefore void for lack of personal jurisdiction and must be set aside under Mont. R. Civ. P. 60(b)(4).

☐ B. Mistake, Inadvertence, Surprise, or Excusable Neglect / Good Cause. Defendant's failure to timely answer resulted from mistake, inadvertence, surprise, or excusable neglect — not willful disregard. Specifically: [____________] (e.g., Defendant was hospitalized or seriously ill; the summons was misplaced; Defendant reasonably believed the matter had been settled or that the wrong person had been sued; Defendant was misled). Mont. R. Civ. P. 60(b)(1).

☐ C. Meritorious Defense. Defendant has one or more meritorious 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 by fraud, misrepresentation, or misconduct, including [____________] (e.g., a false return of service; a "robo-signed" affidavit of indebtedness; misrepresentation of the amount owed or of ownership of the debt). Mont. R. Civ. P. 60(b)(3).

☐ E. Newly Discovered Evidence. Evidence material to Defendant's defense — which could not, with reasonable diligence, have been discovered in time — has come to light: [____________]. Mont. R. Civ. P. 60(b)(2).

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

IV. MERITORIOUS DEFENSE (DEBT-SPECIFIC)

8. Defendant has a meritorious 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 time-barred. Montana generally applies a six (6)-year period to an action commenced on or after October 1, 2025, on a contract founded on a written instrument (Mont. Code Ann. § 27-2-202(1), as amended by 2025 Mont. Laws ch. 174); prior law may govern an earlier-filed action. It applies five (5) years to a contract, account, or promise not founded on a writing (§ 27-2-202(2)), and three (3) years to certain non-contract obligations (§ 27-2-202(3)). The debt accrued on or about [__/__/____], more than the applicable 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 under Mont. R. Civ. P. 17(a).

☐ 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 Montana law.

V. DEFENDANT'S AFFIDAVIT

STATE OF MONTANA
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 excusable neglect / good cause — e.g., "My failure to answer resulted from [____________] and was not a willful disregard of the Court's process."]

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 the limitations period 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.

DATED this [____] day of [____________], 20[____].

_______________________________________
[____________], Affiant

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

_______________________________________
Notary Public for the State of Montana
My commission expires: [__/__/____]

VI. REQUEST TO STAY EXECUTION AND GARNISHMENT

10. Defendant requests that the Court stay all execution, garnishment, attachment, and other enforcement of the Default Judgment pending determination of this Motion. Mont. R. Civ. P. 62; Mont. Code Ann. § 25-13-601 et seq. (execution).

11. 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.

VII. RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that this Court:

A. SET ASIDE and VACATE the Default Judgment entered on [__/__/____] under Mont. R. Civ. P. 55(c) and 60(b);

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

DATED this [____] day of [____________], 20[____].

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

VIII. 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 execution or garnishment is quashed and all enforcement stayed; and that Defendant is granted leave to file an Answer within [____] days.

IX. 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 Mont. R. Civ. P. 5, by the following method:

☐ Montana Courts electronic-filing/service 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/ [____________________________________]
[____________________________________]

MONTANA PRACTICE NOTES

• Authority: Mont. R. Civ. P. 55(c) (set aside an entry of default for good cause; a default judgment under Rule 60(b)); Mont. R. Civ. P. 60(b) (grounds for relief from judgment).
• Deadline: Under Mont. R. Civ. P. 60(c), a Rule 60(b) motion must be made within a reasonable time — and for reasons (1) mistake/inadvertence/surprise/excusable neglect, (2) newly discovered evidence, and (3) fraud/misrepresentation/misconduct, no more than one (1) year after entry of the judgment. A VOID-judgment motion (Rule 60(b)(4)) or catch-all (Rule 60(b)(6)) is governed only by the reasonable-time standard. Montana also requires Rule 60(b) motions to be determined within Rule 59 time frames (deemed denied if not timely ruled on). File promptly and verify the current rule text.
• Standard: Montana favors decisions on the merits; courts weigh diligence, excusable neglect, and the existence of a meritorious defense, and only a "slight abuse of discretion" need be shown to reverse a refusal to set aside a default.
• Void-service rule: A default judgment entered without valid service under Mont. R. Civ. P. 4 is void for lack of personal jurisdiction; the court has no discretion to deny relief under Rule 60(b)(4), and a void judgment will not support a garnishment.
• Court: File in the court that entered the judgment — District Court (or Justice/Small Claims Court, with parallel rules).
• Stay/garnishment: Montana limits garnishment of disposable earnings (Mont. Code Ann. § 25-13-614; federal cap under 15 U.S.C. § 1673) and exempts certain property and federal benefits. Seek a stay (Rule 62) and to quash garnishment as needed.
• SOL on debt: written instrument — generally 6 years for an action commenced on or after October 1, 2025 (§ 27-2-202(1), as amended; prior law may govern an earlier-filed action); account/oral contract — 5 years (§ 27-2-202(2)); certain non-contract obligations — 3 years (§ 27-2-202(3)); judgments — 10 years (§ 27-2-201). Confirm characterization, accrual, and filing date.

Sources and References

• Mont. R. Civ. P. 55 — default; setting aside (verbatim): https://mca.legmt.gov/bills/mca/title_0250/chapter_0200/part_0070/section_0550/0250-0200-0070-0550.html
• Mont. R. Civ. P. 60 — relief from judgment; timing under 60(c) (verbatim): https://mca.legmt.gov/bills/mca/title_0250/chapter_0200/part_0070/section_0600/0250-0200-0070-0600.html
• Mont. Code Ann. § 25-13-614 (earnings subject to garnishment): https://mca.legmt.gov/bills/mca/title_0250/chapter_0130/part_0060/section_0140/0250-0130-0060-0140.html
• Mont. Code Ann. § 27-2-202 (current contract limitations and applicability rule): https://mca.legmt.gov/bills/mca/title_0270/chapter_0020/part_0020/section_0020/0270-0020-0020-0020.html
• 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
• Montana Judicial Branch — courts and self-help: https://courts.mt.gov/courts/

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 Montana attorney. Court rules and deadlines change; verify all citations and the applicable deadline before filing.