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

STATE OF NORTH DAKOTA

COUNTY OF [____________]

IN THE DISTRICT COURT, [____________] JUDICIAL DISTRICT

Case No. [____________]

DEFENDANT'S MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

Filed Pursuant to N.D.R.Civ.P. 55 and 60(b)

NOW COMES the Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], and respectfully moves this Court, pursuant to N.D.R.Civ.P. 55 and 60(b), for an order setting aside and vacating the default judgment entered against Defendant in this action on [__/__/____]. In support, Defendant submits the attached Defendant's Declaration/Affidavit and proposed Answer, and states as follows:

I. INTRODUCTION AND BASIS FOR RELIEF

1. This is a debt-collection action in which Plaintiff [☐ is a debt buyer / ☐ is a collection agency / ☐ claims to be the original creditor] seeks to collect an alleged consumer debt. A default judgment was entered against Defendant on [__/__/____] in the amount of $[____________], plus interest, costs, and/or fees.

2. Defendant did not receive proper service of process and/or had good cause for not responding, has one or more meritorious defenses to the alleged debt, and brings this motion promptly upon learning of the judgment.

3. A Rule 60(b) movant bears the burden of establishing sufficient grounds to disturb the judgment. Courts generally have greater liberty to grant relief from a default judgment than from a judgment after trial, and when a defaulting party timely seeks relief and supports a meritorious defense with credible facts or specific legal grounds, doubts should be resolved in favor of the motion. Olson Family Limited Partnership v. Velva Parks, 2023 ND 216, ¶¶ 6, 10–13, 997 N.W.2d 840.

II. IDENTIFICATION OF THE DEFAULT JUDGMENT

4. Date of judgment. The default judgment was entered on [__/__/____].

5. Amount. The judgment is in the amount of $[____________], consisting of [principal $[____], interest $[____], attorney's fees $[____], court costs $[____]].

6. How and when Defendant learned of the judgment. Defendant first learned of the default judgment on [__/__/____] by the following means:

☐ A notice of wage garnishment served on Defendant's employer (N.D.C.C. ch. 32-09.1)
☐ An execution against, levy on, or attachment of Defendant's property or bank account
☐ A judgment-debtor examination notice or other supplemental proceeding
☐ A credit report entry or judgment docketing/lien
☐ Other: [____________]

7. Defendant files this motion [____] days/months after entry of the default judgment, which is within a reasonable time and within the one-year period applicable to grounds (1)–(3) under Rule 60(c)(1).

III. LEGAL STANDARD

8. Rule 55 and Rule 60(b). A default judgment may be entered under N.D.R.Civ.P. 55; relief from such a judgment is obtained under N.D.R.Civ.P. 60(b). On motion and just terms, the court may relieve a party from a final judgment for, among other reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, it 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.

9. Timing. Under Rule 60(c)(1), the motion "must be made within a reasonable time, and for reasons (1), (2), and (3) no more than a year after notice of entry of the judgment or order . . . if the opposing party appeared, but not more than one year after a default judgment has been entered." Because this is a default judgment, the one-year period for grounds (1)–(3) runs from entry of the judgment.

10. Service and personal jurisdiction. N.D.R.Civ.P. 4(b)(4) recognizes acquisition of personal jurisdiction through authorized service of process or a voluntary general appearance. If the service method was invalid and the Court did not acquire personal jurisdiction, Defendant asserts that the judgment is void under Rule 60(b)(4). Grounds (4)–(6) are not subject to the one-year cap, but the motion still must be made within a reasonable time under Rule 60(c)(1). If service was by publication, Rule 4(e)(7) supplies a separate relief route with its own three-year limit, no-actual-notice requirement, and meritorious-defense requirement; Rule 60(d)(2) preserves that route.

IV. GROUNDS FOR SETTING ASIDE THE JUDGMENT

☐ A. The judgment is VOID — defective or no service; lack of personal jurisdiction (Rule 60(b)(4)). Defendant was never validly served with the summons and complaint as required by N.D.R.Civ.P. 4. Specifically: [describe — e.g., "Defendant did not live at the address where service was attempted," "the return reflects service on a person not authorized or not present," "service was attempted by a method not authorized by Rule 4," "Defendant first learned of the suit only through the garnishment"]. Defendant asks the Court to determine that it did not acquire personal jurisdiction and that the judgment is void. N.D.R.Civ.P. 12(b)(2), (4), (5), and 60(b)(4).

☐ B. Mistake, inadvertence, surprise, or excusable neglect (Rule 60(b)(1)). Defendant's failure to respond was the result of excusable neglect, in that: [describe — e.g., "Defendant was hospitalized," "the papers were misdelivered or received late," "Defendant reasonably believed the matter had been disputed/resolved with the collector," "Defendant did not understand the deadline to answer"].

☐ C. Fraud, misrepresentation, or misconduct (Rule 60(b)(3)). The judgment was obtained through fraud, misrepresentation, or misconduct by Plaintiff or its agents, including [describe — e.g., "a false return of service / 'sewer service,'" "a robo-signed or false declaration of account," "misrepresentation of the amount owed," "concealment of the lack of any assignment"].

☐ D. Newly discovered evidence (Rule 60(b)(2)). Defendant has discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial, namely: [describe].

☐ E. Defendant has a meritorious defense (see Section V).

V. DEFENDANT HAS A MERITORIOUS DEFENSE

11. Defendant is prepared to present one or more meritorious defenses that, if proven, would defeat Plaintiff's claim in whole or in part:

☐ Statute of limitations. The alleged debt is time-barred. An action upon a contract, obligation, or liability, express or implied, generally must be commenced within six (6) years after the claim accrued (N.D.C.C. § 28-01-16(1)). The claim accrued on or about [__/__/____] because [STATE THE CONTRACT- AND ACCOUNT-SPECIFIC FACTS], and suit was filed on [__/__/____]. Do not assume that generic "last activity" controls. Under N.D.C.C. § 28-01-36, a new promise ordinarily must be in a signed writing to extend the limitation period, but the section preserves the legal effect of a payment of principal or interest. [Have counsel analyze accrual, payment, acknowledgment, tolling, and choice-of-law issues.]

☐ Not the debtor / mistaken identity / identity theft. Defendant is not the person who incurred the alleged debt and/or the account was opened or used as a result of identity theft. [Describe; attach FTC Identity Theft Report / police report as Exhibit [__].]

☐ Wrong amount. The amount of the judgment is incorrect, inflated, or includes unauthorized interest, fees, or charges. The correct balance, if any, is $[____________].

☐ Debt paid, settled, or discharged. The alleged debt was paid, settled, or discharged (including by discharge in bankruptcy on [__/__/____], Case No. [____________]) and is not owed.

☐ Plaintiff has not established that it is the real party in interest. N.D.R.Civ.P. 17(a) requires an action to be prosecuted in the name of the real party in interest. Plaintiff is not the original creditor and has not produced admissible evidence showing that the alleged account was assigned to Plaintiff and that Plaintiff owned or was entitled to enforce it when this action was brought.

☐ Potential collection-agency licensing issue—not independently a defense unless law supplies a consequence. N.D.C.C. § 13-05-01.1 defines collection agencies and debt collection, § 13-05-02 requires licensing except as otherwise provided, and § 13-05-02.3 lists thirteen exemptions. Defendant alleges: [IDENTIFY THE PERSON, CONDUCT, AND WHY NO EXEMPTION APPLIES]. Do not assert that licensing noncompliance defeats the debt or creates an FDCPA violation without authority establishing that consequence for the facts presented.

☐ Potential separate § 1692g claim or setoff—not by itself a defense to the debt. A formal pleading in a civil action is not an initial communication under 15 U.S.C. § 1692g(d), so filing the complaint alone does not create a validation-notice violation. Defendant alleges that before suit a debt collector made an initial communication on [__/__/____] and [☐ failed to provide the subsection (a) notice / ☐ continued collection after Defendant's timely written dispute without first mailing the verification, judgment copy, or original-creditor information required by subsection (b)]. [Counsel should determine whether and how to plead any separate claim.]

☐ Other meritorious defense: [____________]

12. These defenses are substantiated by the facts set forth in Defendant's Declaration/Affidavit, below, and the attached exhibits.

VI. DEFENDANT'S DECLARATION / AFFIDAVIT

STATE OF NORTH DAKOTA )
COUNTY OF [____________] ) ss.

I, [____________], declare under penalty of perjury under the law of North Dakota that the following is true and correct:

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

2. I was never properly served with the summons and complaint in this case. [State the facts: where I lived on the date service was attempted; whether I received the papers; who, if anyone, was served; how I actually learned of the lawsuit.]

3. I first learned that a judgment had been entered against me on [__/__/____], when [describe — e.g., "my wages were garnished" / "my bank account was attached"].

4. My failure to respond to the complaint was not intentional or a deliberate disregard of this Court. [State the facts establishing excusable neglect or lack of service.]

5. I have a meritorious defense to Plaintiff's claim, namely: [state the facts supporting the defense(s) checked above — e.g., the date of last payment, that the account is not mine, that the amount is wrong, that the debt was discharged in bankruptcy, that Plaintiff has shown no assignment of my account].

6. I respectfully ask the Court to set aside the default judgment, allow me to defend this case on the merits, and stay any collection efforts in the meantime.

_______________________________________
[____________], Defendant

Signed on [__/__/____] at [City], North Dakota, United States.

VII. REQUEST TO STAY EXECUTION AND GARNISHMENT

13. A Rule 60(b) motion does not suspend the judgment's operation. N.D.R.Civ.P. 60(c)(2). Rule 62(a) provides a 30-day automatic stay after filing notice of entry of judgment or entry of a default judgment unless the Court orders otherwise. If that period has expired, Defendant requests a further stay of execution — including wage garnishment (N.D.C.C. ch. 32-09.1), execution, levy, or attachment — pending the Court's ruling. If the Court requires a bond or other security, Defendant asks the Court to specify an acceptable form and amount so it may be provided and approved under Rule 62(b). Defendant provides notice of the requested stay through this motion because Rule 62(n) limits a stay order made without previous notice to 21 days. Absent a stay, Defendant faces [DESCRIBE SPECIFIC HARM], including possible seizure of property Defendant claims is exempt under N.D.C.C. ch. 28-22.

14. Defendant further requests that any funds or property already garnished, levied upon, or attached be held by the garnishee, sheriff, or the Court, and not disbursed to Plaintiff, until this motion is decided.

VIII. RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that this Court:

A. SET ASIDE and VACATE the default judgment entered on [__/__/____];

B. STAY all garnishment, execution, levy, attachment, and other post-judgment collection proceedings pending the Court's ruling, and order that any funds or property already seized be held and not disbursed;

C. QUASH any outstanding garnishment, execution, or writ issued on the judgment;

D. GRANT Defendant leave to file the accompanying [proposed] Answer and defend this action on the merits;

E. Set this matter for a hearing if the Court deems one necessary; and

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

IX. PROPOSED ORDER

A proposed Order Vacating Default Judgment is submitted contemporaneously with this motion for the Court's consideration.

[PROPOSED] ORDER

THIS MATTER came before the Court on Defendant's Motion to Set Aside / Vacate Default Judgment. Having considered the motion, the supporting declaration/affidavit, the proposed Answer, any response, and the applicable law, the Court finds that the motion should be GRANTED.

IT IS THEREFORE ORDERED that the default judgment entered on [__/__/____] is SET ASIDE and VACATED; all garnishments, executions, levies, and attachments on that judgment are QUASHED or otherwise addressed as provided by law; held funds or property must be disposed of as follows: [COURT TO SPECIFY]; and Defendant is granted leave to file the attached Answer within [____] days of this Order.

Dated: [__/__/____]

_________________________________
Judge of the District Court

X. SIGNATURE

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

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

XI. DECLARATION / CERTIFICATE OF SERVICE

I, [____________], am of legal age and declare under penalty of perjury under the law of North Dakota that on the [____] day of [____________], 20[____], at [TIME], from [CITY, STATE], I served a true and correct copy of the foregoing Defendant's Motion to Set Aside / Vacate Default Judgment, the supporting Declaration/Affidavit, the proposed Answer, and the proposed Order upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented) in accordance with N.D.R.Civ.P. 5, by the following method:

☐ Electronic service under N.D.R.Civ.P. 5(b)(1) for a document required to be filed
☐ Hand delivery under Rule 5(b)(3) because the document is not required to be filed or the recipient is exempt from electronic service [identify the server and use the proof Rule 4 requires]
☐ U.S. Mail to the recipient's last known address under Rule 5(b)(3)
☐ Third-party commercial carrier under Rule 5(b)(3)
☐ Electronic means with the recipient's written consent under Rule 5(b)(3)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

Signed on [__/__/____] at [City], North Dakota, United States.

NORTH DAKOTA PRACTICE NOTES

• Relief is under Rule 60(b). Rule 55 has no separate "set aside" provision; the federal-style Rule 55(c) was not adopted in North Dakota. Use Rule 60(b) and the Rule 60(c) timing rule.
• Deadline: A Rule 60(b) motion must be made within a reasonable time; for grounds (1)–(3) it must be made not more than ONE YEAR after the default judgment was entered (Rule 60(c)(1)). Rule 60(b)(4) (void judgment) is not subject to the one-year limit but must still be made within a reasonable time. Calendar immediately.
• Evidence and a specific defense matter: A Rule 60(b) movant bears the burden. Bare assertions do not establish a meritorious defense; support the proposed Answer with credible facts and specific legal grounds. Olson Family Limited Partnership v. Velva Parks, 2023 ND 216, ¶¶ 6, 10–13, 997 N.W.2d 840.
• Service route controls: Analyze the exact Rule 4 service method. Rule 4(e)(7) is specifically for defendants served by publication and has its own three-year, no-actual-notice, and meritorious-defense requirements; Rule 60(d)(2) preserves that route.
• Use a declaration or affidavit: North Dakota allows an unsworn declaration under penalty of perjury (N.D.C.C. § 31-15-05) with the same effect as an affidavit; either works.
• Stay collection: The motion itself does not suspend the judgment. Address Rule 62's 30-day automatic stay, bond or security, and Rule 62(n) notice/duration requirements; identify the specific property and exemption claimed under N.D.C.C. ch. 28-22.
• Licensing: Apply the definitions in § 13-05-01.1, the license rule in § 13-05-02, and every § 13-05-02.3 exemption. Licensing status alone does not establish the consequence asserted in the motion.
• FDCPA validation: A formal civil pleading is not an initial communication under 15 U.S.C. § 1692g(d). Plead a § 1692g theory only on supported pre-suit communication and dispute facts.

Sources and References

• N.D.R.Civ.P. 60 (relief from a judgment or order): https://www.ndcourts.gov/legal-resources/rules/ndrcivp/60
• N.D.R.Civ.P. 55 (default; default judgment): https://www.ndcourts.gov/legal-resources/rules/ndrcivp/55
• N.D.R.Civ.P. 4 (persons subject to jurisdiction; process; service): https://www.ndcourts.gov/legal-resources/rules/ndrcivp/4
• N.D.R.Civ.P. 5 (service and filing): https://www.ndcourts.gov/legal-resources/rules/ndrcivp/5
• N.D.R.Civ.P. 12 (defenses and waiver): https://www.ndcourts.gov/legal-resources/rules/ndrcivp/12
• N.D.R.Civ.P. 17 (real party in interest): https://www.ndcourts.gov/legal-resources/rules/ndrcivp/17
• N.D.R.Civ.P. 62 (stay of enforcement): https://www.ndcourts.gov/legal-resources/rules/ndrcivp/62
• Olson Family Limited Partnership v. Velva Parks, 2023 ND 216: https://www.ndcourts.gov/supreme-court/opinions/85379
• N.D.C.C. §§ 28-01-16 and 28-01-36 (contract limitations; new promise or payment): https://ndlegis.gov/cencode/t28c01.pdf
• N.D.C.C. § 31-15-05 (unsworn declaration form): https://ndlegis.gov/cencode/t31c15.pdf
• N.D.C.C. ch. 28-22 (exemptions): https://ndlegis.gov/cencode/t28c22.pdf
• N.D.C.C. ch. 13-05 (collection agencies — licensing): https://ndlegis.gov/cencode/t13c05.pdf
• 15 U.S.C. § 1692g (validation of debts): https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section1692g&num=0&edition=prelim