Motion to Strike / Vacate Default Judgment (Debt Collection) - New Hampshire

THE STATE OF NEW HAMPSHIRE

[____________] COUNTY, [☐ SUPERIOR COURT / ☐ CIRCUIT COURT, DISTRICT DIVISION]

Docket No. [____________]

DEFENDANT'S MOTION TO STRIKE / VACATE DEFAULT AND DEFAULT JUDGMENT

Filed Pursuant to N.H. Super. Ct. Civ. R. 42 and RSA 514:2; with Affidavit of Defense; Request to Stay Execution

NOW COMES the Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], and respectfully moves this Honorable Court, pursuant to N.H. Superior Court Civil Rule 42 and RSA 514:2, to strike the default and vacate the default judgment entered against Defendant in this consumer-debt action, to grant Defendant leave to file a late appearance and answer, and to stay execution pending resolution of this Motion. In support, Defendant states as follows:

I. INTRODUCTION AND PROCEDURAL POSTURE

1. This is an action to collect an alleged consumer debt. Plaintiff [is the original creditor / is a debt buyer or collection agency that claims the alleged debt was assigned to it].

2. The Complaint/Writ was filed/entered on or about [__/__/____]. Plaintiff claims to have served Defendant on or about [__/__/____].

3. Defendant was defaulted on or about [__/__/____] under Super. Ct. Civ. R. 42(a), and final default / default judgment was entered on or about [__/__/____] in the amount of $[____________], plus interest, costs, and fees (the "Default Judgment").

4. Defendant [☐ was never served / ☐ did not receive the notice of default / ☐ first learned of the Default Judgment on [__/__/____] when [____________ — e.g., a bank account was attached / Defendant reviewed a credit report]].

5. Defendant brings this Motion promptly upon learning of the default and judgment, and submits the required Affidavit of Defense below.

II. LEGAL STANDARD

A. Super. Ct. Civ. R. 42 and RSA 514:2 — Striking a Default

Under New Hampshire Superior Court Civil Rule 42(a), a defaulted party may obtain relief only "by agreement, or by order of the court upon such terms as justice may require," and "[t]he court shall strike the default only upon motion and affidavit of defense, specifically setting forth the defense and the facts on which the defense is based." RSA 514:2 ("Striking Off Default") provides corresponding statutory authority for the court to strike a default upon such terms as justice may require. The decision to strike a default and vacate a default judgment lies within the sound discretion of the trial court.

B. RSA 526:1 — Relief for Accident, Mistake, or Misfortune

Where, through no fault of the defendant, justice has not been done, relief is also available: "A new trial may be granted in any case when through accident, mistake or misfortune justice has not been done and a further hearing would be equitable." RSA 526:1. A defendant who, through accident, mistake, or misfortune (and not through willful neglect), failed to appear and defend, and who has a meritorious defense, may obtain relief so the matter is decided on its merits.

III. GROUNDS FOR RELIEF

A. The Default Judgment Is Void / Voidable — Defective Service; No Personal Jurisdiction

A judgment entered without valid service of process and personal jurisdiction over the defendant cannot stand. Defendant contends service was defective for the reason(s) checked, and the Court lacks/lacked personal jurisdiction:

☐ Defendant was never served with the writ/summons and complaint.

☐ Service was attempted at an address where Defendant did not reside or was not employed, or on a person not authorized to accept service. RSA 510; Super. Ct. Civ. R. 4.

☐ Out-of-state or substituted service did not comply with the applicable service statute (e.g., RSA 510:4 / RSA 510:8).

☐ The return/proof of service is false, defective, or facially insufficient.

☐ Other defect in service or jurisdiction: [____________].

B. Accident, Mistake, or Misfortune (RSA 526:1); Justice Requires Striking the Default

☐ Defendant's failure to appear and defend resulted from accident, mistake, or misfortune, and not from willful neglect, in that: [____________ — e.g., Defendant did not receive the writ or the notice of default; Defendant was hospitalized/incapacitated; the papers were misdirected; Defendant reasonably believed the matter was disputed or had been resolved; identity theft]. Justice requires that the default be stricken so the matter is decided on its merits.

C. Fraud, Misrepresentation, or Misconduct

☐ The Default Judgment was obtained through fraud, misrepresentation, or misconduct, in that: [____________ — e.g., a false return of service ("sewer service"); a robo-signed affidavit of debt; misrepresentation of the amount or ownership of the debt].

D. Newly Discovered Evidence

☐ Evidence that could not, with reasonable diligence, have been discovered in time to defend has come to light: [____________].

E. Satisfaction / Discharge

☐ The alleged debt was paid, settled, released, or discharged (including by discharge in bankruptcy) before judgment: [____________].

IV. DEFENDANT HAS A MERITORIOUS DEFENSE

Defendant has one or more meritorious defenses that, if the default is stricken, would likely change the result:

☐ Statute of Limitations. The alleged debt is time-barred. A personal action (including most contract and debt claims) must generally be brought within three (3) years under RSA 508:4. The debt accrued (last payment/default) on or about [__/__/____], more than the limitations period before suit. Suing on a time-barred debt also violates the FDCPA. [verify the applicable RSA 508 limitation for the claim type; certain instruments may carry a different period.]

☐ Wrong Defendant / Mistaken Identity / Identity Theft. Defendant is not the person who incurred the alleged debt, the account results from identity theft, or Plaintiff sued the wrong (similarly named) person. [____________].

☐ Lack of Standing; No Proof of Assignment. Plaintiff is a debt buyer that has not established a complete, unbroken chain of assignment from the original creditor identifying Defendant's specific account, and is therefore not entitled to enforce the alleged debt.

☐ Wrong / Unsubstantiated Amount. The amount of the Default Judgment is incorrect, inflated, or includes unauthorized interest, fees, or charges not supported by the account agreement or itemized statements. [____________].

☐ Payment / Discharge / Accord and Satisfaction. The debt has been paid, settled, released, or discharged in bankruptcy. [____________].

☐ 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.

☐ New Hampshire Collection / Consumer Protection. Plaintiff or its predecessors engaged in unfair, deceptive, or unreasonable collection practices in violation of RSA 358-C, and/or unfair or deceptive acts in violation of the New Hampshire Consumer Protection Act, RSA 358-A.

☐ Other meritorious defense: [____________].

V. REQUEST TO STAY EXECUTION AND ATTACHMENT/GARNISHMENT

1. Defendant requests that the Court stay execution of the Default Judgment and stay or dissolve any attachment, trustee process, or bank execution issued or to be issued, pending determination of this Motion and, if granted, pending resolution of the action on the merits.

2. A stay is warranted because continued enforcement of a judgment that is subject to being vacated would cause irreparable harm to Defendant — including the freezing of exempt funds — while a brief stay imposes minimal prejudice on Plaintiff.

☐ Defendant requests immediate/temporary relief and asks the Court to hear this Motion on an expedited basis because an execution, attachment, or trustee process is active or imminent.

VI. AFFIDAVIT OF DEFENSE / DEFENDANT'S AFFIDAVIT IN SUPPORT

THE STATE OF NEW HAMPSHIRE
[____________] COUNTY

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

1. I am the Defendant in this action. I have personal knowledge of the facts set forth below and am competent to testify to them.

2. [Describe how and when you first learned of the lawsuit and of the default/judgment, and what occurred with service: ____________.]

3. [State the facts showing your failure to appear was due to accident, mistake, or misfortune and not willful neglect — e.g., I was never served; the writ was left at an address where I do not live; I was incapacitated: ____________.]

4. Affidavit of Defense. My defense to this action, and the facts on which it is based, are as follows: [____________ — state your meritorious defense specifically, e.g., the last payment on this account was on or about [__/__/____] and the claim is time-barred; I never opened this account; I paid/settled this debt; the amount claimed is wrong; the Plaintiff is not the owner of the debt].

5. I acted promptly to seek relief after learning of the default and judgment, and I bring this Motion in good faith.

6. If the default is stricken, I will promptly file an appearance and answer and defend this action on the merits.

I declare under the pains and penalties of perjury that the foregoing is true and correct to the best of my knowledge and belief.

________________________________________
[____________________________________], Defendant

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

________________________________________
Justice of the Peace / Notary Public
My commission expires: [__/__/____]

VII. PROPOSED ORDER

THE STATE OF NEW HAMPSHIRE
[____________] COUNTY, [SUPERIOR COURT]
Docket No. [____________]

ORDER ON MOTION TO STRIKE / VACATE DEFAULT AND DEFAULT JUDGMENT

The Defendant's Motion to Strike / Vacate Default and Default Judgment, with supporting Affidavit of Defense, having come before the Court under Super. Ct. Civ. R. 42 and RSA 514:2, and the Court having considered the Motion, the Affidavit, any objection, and the record, and justice so requiring, the Court ORDERS:

1. The Motion is [GRANTED / DENIED].

2. The default and the Default Judgment entered on [__/__/____] are [STRICKEN AND VACATED].

3. Any execution, attachment, or trustee process issued on the Default Judgment is [STAYED / DISSOLVED], and withheld funds shall be [returned to Defendant].

4. Defendant shall file an appearance and answer within [____] days of the date of this Order.

SO ORDERED.

Date: [__/__/____] ________________________________________
[☐ Presiding Justice / ☐ Judge]

VIII. CERTIFICATE OF SERVICE

I hereby certify that on the [____] day of [____________], 20[____], I served a true and correct copy of the foregoing Motion to Strike / Vacate Default and Default Judgment (with Affidavit of Defense and Proposed Order) upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented), by the following method:

☐ New Hampshire electronic-filing system (mandatory for attorneys; self-represented litigants may file on paper)
☐ U.S. First-Class Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery
☐ Email (by agreement / where permitted)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
N.H. Bar No. (if attorney): [____________]

NEW HAMPSHIRE PRACTICE NOTES

• Authority: New Hampshire has no single Rule 60(b)-style provision. Relief from a default judgment is sought by a Motion to Strike Default under N.H. Super. Ct. Civ. R. 42(a) ("only upon motion and affidavit of defense, specifically setting forth the defense and the facts on which the defense is based") and RSA 514:2 ("Striking Off Default"). Where justice has not been done through accident, mistake, or misfortune, RSA 526:1 authorizes a new trial.
• Affidavit of defense is mandatory: Rule 42(a) requires an affidavit that specifically states the defense and supporting facts — a bare motion is insufficient.
• Discretionary standard: The decision to strike a default and vacate the judgment is within the trial court's discretion; courts consider diligence, the reason for the default (accident/mistake/misfortune vs. willful neglect), a meritorious defense, and finality. Barton v. Hayes; Tessier v. Blood [verify citations].
• Service / jurisdiction: A judgment entered without valid service is subject to challenge; raise the jurisdictional objection first/expressly and preserve it. Filing a motion to strike generally submits the defendant to jurisdiction.
• Deadline: Move promptly. Verify any time limit on an RSA 526 petition for a new trial and any Small Claims deadline to strike a default (District Division Rule 4.3).
• Forum: Superior Court for general civil debt suits (Super. Ct. Civ. Rules; default under Rule 42); Small Claims for smaller matters (RSA Ch. 503; District Division Rule 4.3) — adapt the motion accordingly.
• Stay / collection: New Hampshire has no general wage-garnishment procedure for ordinary creditors (RSA 512:21(I) exempts post-service wages); enforcement is typically by execution against property or bank trustee process (RSA 512). Move to stay execution and assert exemptions (RSA 512:21; RSA 511:2).
• Debt-specific defenses: SOL (RSA 508:4 — generally 3 years), no assignment/standing, wrong amount, identity theft, and payment/discharge. A qualifying § 1692g violation may support a separate FDCPA claim, but does not by itself invalidate the debt.

Sources and References

• N.H. Superior Court Civil Rule 42 (Default): https://www.courts.nh.gov/rules-superior-court-state-new-hampshire/civil-rules/rule-42-default
• RSA 514:2 (Striking Off Default): https://law.justia.com/codes/new-hampshire/title-liii/chapter-514/section-514-2/
• RSA 526:1 (New Trials — When Granted): https://law.justia.com/codes/new-hampshire/title-liii/chapter-526/section-526-1/
• RSA 508:4 (Personal Actions — Limitation): https://www.gencourt.state.nh.us/rsa/html/NHTOC/NHTOC-LII-508.htm
• RSA 358-C (Unfair, Deceptive or Unreasonable Collection Practices Act): https://www.gencourt.state.nh.us/rsa/html/NHTOC/NHTOC-XXXI-358-C.htm
• RSA 358-A (Consumer Protection Act): https://www.gencourt.state.nh.us/rsa/html/NHTOC/NHTOC-XXXI-358-A.htm
• RSA 512 (Trustee Process) and RSA 512:21 (Exemptions): https://www.gencourt.state.nh.us/rsa/html/NHTOC/NHTOC-LII-512.htm
• Small Claims (RSA Chapter 503; District Division Rule 4.3): https://www.courts.nh.gov/our-courts/circuit-court/district-division/small-claims
• 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/

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 New Hampshire attorney. Legal requirements and court rules change frequently. Always verify current rules and local practices before filing.