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

STATE OF NEW MEXICO

COUNTY OF [____________]

[____________] JUDICIAL DISTRICT COURT

No. [____________]

DEFENDANT'S MOTION TO SET ASIDE ENTRY OF DEFAULT AND DEFAULT JUDGMENT

Rules 1-055(C), 1-060(B), and 1-062(B) NMRA

Defendant [NAME], appearing [pro se / through counsel], moves to set aside the entry of default dated [DATE] and the default judgment dated [DATE]. Defendant also requests a separate stay of enforcement while this motion is pending.

This motion is based on the record, the attached affidavit, the checked ground or grounds below, and the following facts.

I. IMPORTANT RULE SELECTION

☐ Entry of default only. Rule 1-055(C) permits the court, for good cause, to set aside an entry of default.

☐ Default judgment entered. Rule 1-055(C) directs that a default judgment be addressed under Rule 1-060.

☐ Rule 1-060(B)(1), (2), or (3). This motion must be filed within a reasonable time and no more than one year after the judgment, order, or proceeding was entered or taken.

☐ Rule 1-060(B)(4) — void judgment. The current official committee commentary states that this motion may be brought at any time, the court lacks discretion to deny relief from a void judgment, and no meritorious defense is required. Classen v. Classen, 1995-NMCA-022, ¶¶ 10, 13, 119 N.M. 582, 893 P.2d 478; Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 86-87 (1988).

☐ Rule 1-060(B)(5) or (6). The motion must be filed within a reasonable time. For the consumer-debt ground under paragraph (B)(6), the current official commentary also requires a meritorious defense and explains that relief remains discretionary. Rodriguez v. Conant, 1987-NMSC-040, ¶ 18, 105 N.M. 746, 737 P.2d 527; Phelps Dodge Corp. v. Guerra, 1978-NMSC-053, ¶¶ 15, 20-21, 92 N.M. 47, 582 P.2d 819.

No automatic stay: Rule 1-060(B) states that the motion does not suspend operation of the judgment. A separate stay is requested below under Rule 1-062(B).

II. PROCEDURAL FACTS

1. Plaintiff filed the complaint on [DATE].

2. The court file states that service occurred on [DATE] by [DESCRIBE METHOD AND PERSON SERVED].

3. The clerk entered default on [DATE].

4. The court entered default judgment on [DATE] for $[AMOUNT], plus [INTEREST / FEES / COSTS].

5. Defendant first learned of [THE LAWSUIT / THE DEFAULT / THE JUDGMENT] on [DATE], when [DESCRIBE].

6. Defendant filed this motion on [DATE], [NUMBER] days after learning of the judgment and [NUMBER] days after entry.

7. Enforcement status:

III. GROUND OR GROUNDS FOR RELIEF

A. Void Judgment — Rule 1-060(B)(4)

☐ Defendant was not served with the summons and complaint.

☐ The papers were delivered or mailed in a manner that did not satisfy Rule 1-004 NMRA.

☐ The return of service incorrectly states [DESCRIBE].

☐ The court lacked personal jurisdiction for another reason: [DESCRIBE].

Rule 1-004 requires a method reasonably calculated to provide notice and a reasonable opportunity to defend. Its authorized methods and sequence depend on the facts. Identify the exact paragraph allegedly violated and attach the summons, return, mailing receipt, address records, or other supporting evidence.

B. Mistake, Inadvertence, Surprise, or Excusable Neglect — Rule 1-060(B)(1)

☐ Defendant did not respond because: [FACTS, NOT CONCLUSIONS].

☐ Defendant acted promptly after learning of the judgment by: [FACTS AND DATES].

C. Newly Discovered Evidence — Rule 1-060(B)(2)

☐ The following evidence could not, with due diligence, have been discovered in time to move for a new trial under Rule 1-059 NMRA: [DESCRIBE EVIDENCE AND DILIGENCE].

D. Fraud, Misrepresentation, or Misconduct — Rule 1-060(B)(3)

☐ Plaintiff or another adverse party engaged in: [IDENTIFY SPECIFIC STATEMENT, ACT, DATE, SPEAKER, AND EVIDENCE].

E. Satisfaction, Release, Discharge, Reversal, or Prospective Inequity — Rule 1-060(B)(5)

☐ The judgment or debt was satisfied, released, or discharged on [DATE] by [DESCRIBE AND ATTACH PROOF].

☐ A prior judgment on which this judgment is based was reversed or vacated: [IDENTIFY].

☐ Prospective application is no longer equitable because: [DESCRIBE].

F. Consumer-Debt Noncompliance or Other Justifying Reason — Rule 1-060(B)(6)

☐ This case was controlled by Rule 1-009(J) NMRA, but Plaintiff failed to comply with the applicable consumer-debt provisions of Rule 1-009(J), Rule 1-017(E), or the corresponding affidavit form.

For an ordinary consumer-debt default judgment, Rule 1-055(B) requires the court to determine that the claimant stated a claim, complied with Rules 1-009(J)(3) and 1-017(E), and substantially complied with Form 4-226. For a medical-debt default judgment, Rule 1-055(B) instead refers to Rules 1-009(J)(2) and 1-017(E) and Form 4-226A.

The specific defect is:

☐ The writing on which the claim was founded was not served and filed as required by Rule 1-009(J)(3), and the court did not excuse the omission for good cause.

☐ Plaintiff was not the original creditor and did not file the chain-of-title or assignment affidavit and supporting business records required by Rule 1-017(E)(2).

☐ A collection agency did not plead the specific facts required by Rule 1-017(E)(1).

☐ The affidavit did not substantially comply with [Form 4-226 / Form 4-226A].

☐ Other applicable noncompliance: [DESCRIBE].

Rule 1-060(B)(6) supplies a possible ground for relief; the official commentary states that noncompliance does not compel relief in every case.

IV. MERITORIOUS DEFENSE

If the judgment is set aside, Defendant will assert the following supported defense or defenses:

☐ Wrong person or identity theft. [FACTS AND DOCUMENTS].

☐ Limitations. NMSA 1978 § 37-1-3(A) provides six years for an action founded on a written contract. Section 37-1-4 provides four years for actions founded on accounts and unwritten contracts and its other listed actions. The claim's characterization, governing law, accrual, tolling, and revival must be determined from the evidence. [APPLICATION TO FACTS].

☐ Payment, settlement, release, or discharge. [FACTS AND DOCUMENTS].

☐ Plaintiff is not entitled to enforce the debt. Plaintiff is not the original creditor and the filed materials do not establish the chain required by Rule 1-017(E)(2): [IDENTIFY MISSING OR DEFECTIVE LINK].

☐ Amount not proved. The judgment includes amounts not supported by the agreement, statements, or admissible records: [DESCRIBE].

☐ Consumer-debt pleading defect. [IDENTIFY THE RULE 1-009(J), RULE 1-017(E), FORM 4-226, OR FORM 4-226A DEFECT AND EXPLAIN HOW IT SUPPORTS A DEFENSE].

☐ Other defense: [FACTS AND LEGAL BASIS].

V. REQUEST FOR SEPARATE STAY

Rule 1-062(B) permits the court, in its discretion and on appropriate conditions for the adverse party's security, to stay execution or enforcement while a Rule 1-060 motion is pending.

Defendant requests that the court stay [EXECUTION / WAGE GARNISHMENT / BANK GARNISHMENT / OTHER PROCESS] until this motion is decided because:

1. the asserted ground has factual support in [IDENTIFY EXHIBITS];
2. continued enforcement before a ruling would cause [SPECIFIC HARM];
3. Defendant filed promptly after learning of the judgment; and
4. the following security or condition is proposed, if any: [__________].

Defendant understands that the stay is not effective unless the court orders it.

VI. REQUESTED RELIEF

Defendant asks the court to:

1. set aside the entry of default under Rule 1-055(C);
2. vacate the default judgment under Rule 1-060(B)([PARAGRAPH]);
3. stay enforcement under Rule 1-062(B) while this motion is pending;
4. quash or withdraw any enforcement process if the judgment is vacated;
5. permit Defendant to file the attached proposed answer within [NUMBER] days; and
6. grant any further relief the court finds proper.

Respectfully submitted on [DATE].

[________________________________]

[DEFENDANT OR ATTORNEY NAME]

[ADDRESS]

[PHONE]

[EMAIL]

New Mexico Bar No., if applicable: [__________]

VII. AFFIDAVIT OF DEFENDANT

STATE OF NEW MEXICO

COUNTY OF [____________]

I, [DEFENDANT NAME], being duly sworn, state:

1. I am the Defendant and have personal knowledge of the facts stated here.

2. I first learned of the lawsuit or judgment on [DATE] when [DESCRIBE].

3. The facts concerning service are: [DESCRIBE WHERE DEFENDANT LIVED OR WORKED, WHO RECEIVED PAPERS, WHAT WAS MAILED, AND SUPPORTING RECORDS].

4. The facts supporting relief under Rule 1-060(B)([PARAGRAPH]) are: [DESCRIBE].

5. The facts supporting my defense are: [DESCRIBE].

6. I acted after learning of the judgment as follows: [DATES AND ACTIONS].

7. The following exhibits are true and correct copies: [LIST].

[________________________________]

[DEFENDANT NAME]

Sworn to or affirmed before me on [DATE].

[________________________________]

Notarial Officer

Title and commission expiration: [__________]

VIII. PROPOSED ORDER

No. [____________]

ORDER ON MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT

The Court reviewed Defendant's motion, the response and reply, if any, the record, and the evidence presented. The Court orders:

1. The motion is [GRANTED / DENIED].

2. The entry of default dated [DATE] is [SET ASIDE / NOT SET ASIDE].

3. The default judgment dated [DATE] is [VACATED / NOT VACATED].

4. Enforcement is [STAYED / NOT STAYED] until [DATE OR EVENT].

5. [WRIT OR GARNISHMENT] is [QUASHED / WITHDRAWN / UNAFFECTED].

6. Defendant shall file an answer by [DATE].

7. Other terms: [__________].

IT IS SO ORDERED.

[________________________________]

District Court Judge

Date: [DATE]

IX. CERTIFICATE OF SERVICE

I certify that on [DATE], I served a true and correct copy of this motion and its attachments on every required party or counsel using a method permitted by Rule 1-005 NMRA and any applicable electronic-filing rule or court order.

Method: [HAND DELIVERY / FIRST-CLASS MAIL / AUTHORIZED ELECTRONIC SERVICE / OTHER]

Recipient and address or service account: [________________________________]

[________________________________]

Signature

CURRENT OFFICIAL SOURCES

• NMOneSource — current unannotated Rules of Civil Procedure for the District Courts
• New Mexico Supreme Court — Rule 1-055 amendments effective December 31, 2025
• New Mexico Supreme Court — Rule 1-060 amendments effective December 31, 2025
• New Mexico Supreme Court — Rule 1-009 amendments effective December 31, 2025
• NMOneSource — current NMSA Chapter 37

Current official sources and every citation in this file were checked on August 14, 2026. Citation pre-screening resolved all four cited cases. The current Rule 1-060 committee commentary supplies the cited case propositions. Bill-index screening found no enacted 2025 or 2026 amendment to §§ 37-1-3 or 37-1-4.

This template is provided for informational purposes only and does not constitute legal advice. A New Mexico-licensed attorney must review and customize it before filing.