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

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

Case No. [____________]

MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

Filed Pursuant to Neb. Rev. Stat. § 25-2001 (and, in County Court, § 25-2720.01)

COMES NOW the Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], and respectfully moves this Court to set aside and vacate the default judgment entered against Defendant on [__/__/____], to quash any garnishment or execution issued upon that judgment, and to grant Defendant leave to file an 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 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 summons, 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 (§ 25-2001(1)) / ☐ two (2) years of entry on a § 25-2001(4) ground (§ 25-2008) / ☐ a reasonable time, the Default Judgment being void for lack of jurisdiction].

II. LEGAL STANDARD

5. Statutory authority. A district court has the power to vacate or modify its own judgments — including the inherent power, after the end of the term, "upon a motion filed within six months after the entry of the judgment" (Neb. Rev. Stat. § 25-2001(1)) — and may vacate a judgment after term on enumerated grounds including irregularity in obtaining the judgment, fraud practiced by the successful party, newly discovered material evidence, and unavoidable casualty or misfortune preventing the party from defending (Neb. Rev. Stat. § 25-2001(4)). The County Court has the same power to set aside default judgments and to vacate or modify its judgments "in the same manner as provided for actions filed in the district court" (Neb. Rev. Stat. § 25-2720.01).

6. Common-law standard for default judgments. Where a judgment has been entered by default and a prompt application is made to set it aside, with the tender of an answer or other proof disclosing a meritorious defense, the court should on reasonable terms sustain the motion and permit the cause to be heard on the merits. A "meritorious or substantial defense" is one worthy of judicial inquiry because it raises a question of law deserving investigation and discussion, or a real controversy as to the essential facts. The movant need not show that it will ultimately prevail — only that it has a defense recognized by law that is not frivolous. The decision rests in the sound, but not arbitrary, discretion of the trial court.

7. Void judgments. A judgment entered without valid service of process is void for lack of personal jurisdiction. A void judgment may be attacked at any time, and a judgment shown to be void must be set aside; the discretionary balancing does not apply.

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 in compliance with the Nebraska service rules. Specifically: [____________] (e.g., Defendant did not reside at the address served; certified-mail or residence service did not reach Defendant; "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, and any garnishment or execution upon it is likewise void.

☐ B. Inherent Power / Prompt Motion Within Six Months (§ 25-2001(1)). This Motion is filed within six months of entry of the Default Judgment, and the Court should exercise its inherent power to vacate it so the case may be heard on the merits, Defendant having tendered a meritorious defense and a proposed Answer.

☐ C. Irregularity in Obtaining the Judgment (§ 25-2001(4)(a)). The Default Judgment was obtained irregularly, including [____________] (e.g., entry without proper proof of damages under Neb. Ct. R. § 6-1508; defective default procedure).

☐ D. Fraud Practiced by the Successful Party (§ 25-2001(4)(b)). The Default Judgment was procured by fraud, 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).

☐ E. Newly Discovered Material Evidence (§ 25-2001(4)(c)). Evidence material to Defendant's defense — which could not, with reasonable diligence, have been discovered earlier — has come to light: [____________].

☐ F. Unavoidable Casualty or Misfortune (§ 25-2001(4)(f)). Defendant was prevented from defending by unavoidable casualty or misfortune: [____________] (e.g., serious illness or hospitalization; the summons never reached Defendant through no fault of Defendant's own).

☐ G. Meritorious Defense. Defendant has one or more meritorious defenses, as set forth in Section IV below and in the attached Affidavit and proposed Answer.

IV. MERITORIOUS DEFENSE (DEBT-SPECIFIC)

8. Defendant tenders the following meritorious defense, supported by the attached Affidavit and proposed Answer (check all that apply):

☐ Statute of Limitations / Time-Barred Debt. The alleged debt is time-barred. Nebraska applies a five (5)-year period to an action on a written agreement (Neb. Rev. Stat. § 25-205) and a four (4)-year period to an action on an oral/unwritten contract, express or implied, or a liability created by statute (Neb. Rev. Stat. § 25-206). The claim accrued from the pleaded breach or default under the governing instrument on or about [__/__/____], more than the applicable period before suit was filed. Counsel has checked claim classification, any more-specific period, and any legally sufficient tolling or acknowledgment event.

☐ 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.

☐ 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 are worthy of judicial inquiry, raising a question of law deserving investigation or a real controversy as to the essential facts. A proposed Answer is tendered herewith.

V. DEFENDANT'S AFFIDAVIT

STATE OF NEBRASKA
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 explaining the default — e.g., "My failure to answer resulted from [____________]," tying it to unavoidable casualty/misfortune or irregularity as applicable.]

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. A proposed Answer is tendered with this Motion, and I request leave to file it.

FURTHER AFFIANT SAYETH NAUGHT.

_______________________________________
[____________], Affiant

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

_______________________________________
Notary Public
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. Neb. Rev. Stat. § 25-1056 et seq. (garnishment).

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 [__/__/____] pursuant to Neb. Rev. Stat. § 25-2001 (and § 25-2720.01 if in County Court);

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

C. GRANT Defendant leave to file the tendered 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
Nebraska Bar No. (if attorney): [____________]
[Street Address]
[City], Nebraska [____]
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 garnishment or execution is quashed and all enforcement stayed; and that Defendant's tendered Answer is deemed filed (or 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, Affidavit, and proposed Answer) upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented) in accordance with Neb. Ct. R. Pldg. § 6-1105, by the following method:

☐ Nebraska JUSTICE 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/ [____________________________________]
[____________________________________]

NEBRASKA PRACTICE NOTES

• Authority: Neb. Rev. Stat. § 25-2001 (district court power to vacate or modify judgments) and § 25-2720.01 (county court power to set aside default judgments / vacate or modify, "in the same manner as provided for actions filed in the district court"). Do NOT cite § 25-1587.02 — it merely defines "foreign judgment" under the Uniform Enforcement of Foreign Judgments Act and is not a vacate authority.
• Deadline: Inherent power after term — motion filed within six (6) months of entry (§ 25-2001(1)); rights fixed when the motion is FILED. Enumerated § 25-2001(4) grounds (irregularity, fraud, newly discovered evidence, unavoidable casualty) — commenced within two (2) years of entry (§ 25-2008). A judgment void for lack of jurisdiction may be attacked even after two years. File promptly and verify timing.
• Standard (common law): A prompt motion plus a tendered answer or other proof disclosing a meritorious defense; a meritorious defense is one "worthy of judicial inquiry," not frivolous (Steinberg v. Stahlnecker; Beren Corp. v. Spader). A cursory "I have a good defense" is insufficient — attach a proposed Answer.
• Void-service rule: A default judgment entered without valid service is void for lack of personal jurisdiction and must be set aside; a void judgment will not support a garnishment.
• Court: Most consumer-debt suits are in County Court (use § 25-2720.01, which incorporates § 25-2001); District Court uses § 25-2001 directly. Confirm the court and case number on the judgment.
• Stay/garnishment: Nebraska limits garnishment of disposable earnings (Neb. Rev. Stat. § 25-1558; federal cap under 15 U.S.C. § 1673) and exempts federal benefits. Seek to quash garnishment and file a claim of exemption as needed.
• SOL on debt: written contract — 5 years (§ 25-205); oral/unwritten contract or statutory liability — 4 years (§ 25-206). Characterization of credit-card debt is litigated; a payment may restart the period.

Sources and References

• Neb. Rev. Stat. § 25-2001 (district court; vacate/modify; 6-month inherent-power window): https://nebraskalegislature.gov/laws/statutes.php?statute=25-2001
• Neb. Rev. Stat. § 25-2720.01 (county court; set aside default judgments): https://nebraskalegislature.gov/laws/statutes.php?statute=25-2720.01
• Neb. Rev. Stat. § 25-2008 (two-year limit for § 25-2001(4) grounds): https://nebraskalegislature.gov/laws/statutes.php?statute=25-2008
• Steinberg v. Stahlnecker, 200 Neb. 466, 263 N.W.2d 861 (1978) (tender of answer / meritorious defense): https://law.justia.com/cases/nebraska/supreme-court/1978/41379-1.html
• Neb. Rev. Stat. § 25-1558 (earnings exempt from garnishment): https://nebraskalegislature.gov/laws/statutes.php?statute=25-1558
• Neb. Rev. Stat. § 25-205 / § 25-206 (limitations): https://nebraskalegislature.gov/laws/statutes.php?statute=25-205
• 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

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 Nebraska attorney. Note the differing deadlines (6 months / 2 years / void) and that § 25-1587.02 is not a vacate authority. Verify all citations and deadlines before filing.