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

IN THE DISTRICT COURT OF [____________] COUNTY, STATE OF OKLAHOMA

Case No. [____________]

DEFENDANT'S MOTION / PETITION TO SET ASIDE / VACATE DEFAULT JUDGMENT

Filed Pursuant to Okla. Stat. tit. 12, §§ 1031, 1031.1, and 1033

COMES NOW the Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], and respectfully [☐ moves (within 30 days) / ☐ petitions (more than 30 days after the judgment)] this Court to set aside and vacate the default judgment entered against Defendant in this action on [__/__/____], pursuant to Okla. Stat. tit. 12, §§ 1031, 1031.1, and 1033. In support, Defendant 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] seeking 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 notice of this action and/or had good cause for not responding, has one or more meritorious defenses to the alleged debt, and brings this request promptly upon learning of the judgment. For the reasons set forth below, the default judgment should be set aside.

3. Oklahoma law favors the resolution of disputes on the merits, and the District Court has broad statutory and inherent authority to vacate its own default judgments where one of the grounds set out in 12 O.S. § 1031 is shown, or where the court acts within the 30-day term-time window under 12 O.S. § 1031.1.

II. IDENTIFICATION OF THE DEFAULT JUDGMENT

4. Date of judgment. The default judgment was filed with the court clerk on [__/__/____].

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

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

☐ A notice of garnishment of wages served on Defendant's employer
☐ A bank levy / freeze or garnishment of Defendant's bank account
☐ A post-judgment writ, asset hearing, or examination notice
☐ A credit report entry
☐ Other: [____________]

7. Defendant files this request [____] days after [first learning of the judgment / the judgment was filed], which is within the applicable deadline under [☐ § 1031.1 (within 30 days of filing) / ☐ § 1033 (petition; within the § 1038 period for the ground asserted) / ☐ no time limit (void judgment)].

III. LEGAL STANDARD

8. Section 1031.1 — term-time power. Under 12 O.S. § 1031.1, on motion of a party made not later than thirty (30) days after the judgment is filed with the court clerk, "the court may correct, open, modify, or vacate the judgment, decree, or appealable order." Within this window the court's discretion is broad.

9. Section 1031 — statutory grounds. Beyond the term-time window, 12 O.S. § 1031 empowers the District Court to vacate or modify its own judgment on specifically enumerated grounds, including: (Second) as authorized in § 2004(C), where the defendant had no actual notice of the pendency of the action at the time the judgment was filed; (Third) for mistake, neglect, or omission of the clerk, or irregularity in obtaining the judgment; (Fourth) for fraud practiced by the successful party in obtaining the judgment; and (Seventh) for unavoidable casualty or misfortune preventing the party from defending.

10. Section 1033 — procedure after 30 days. If more than thirty (30) days have passed since the judgment was filed, proceedings to vacate or modify "shall be by petition" under 12 O.S. § 1033 (verified, with summons issued and served as in the commencement of an action), unless approved by all parties who have entered an appearance. The § 1038 limitations periods govern the time to bring such a petition.

11. A judgment without valid service is void. A court acquires personal jurisdiction only through valid service of process. A default judgment entered when the defendant was not properly served — or where service was by publication or mail and the defendant had no actual notice — is void for lack of personal jurisdiction. A void judgment may be vacated at any time; the court has no discretion to do otherwise. Okla. Stat. tit. 12, §§ 2004, 2012(B)(2), (4), (5).

IV. GROUNDS FOR SETTING ASIDE THE JUDGMENT

☐ A. The judgment is VOID — defective or no service of process; no actual notice; lack of personal jurisdiction. Defendant was never validly served with the summons and petition as required by Okla. Stat. tit. 12, § 2004, and/or had no actual notice of the pendency of the action at the time the judgment was filed (§ 1031 (Second); § 2004(C)). Specifically: [describe — e.g., "Defendant did not live at the address where service was attempted," "the return reflects service on a person not authorized to accept it," "service was by publication/mail and Defendant never received it," "Defendant first learned of the suit only through the garnishment"]. Because the Court lacked personal jurisdiction, the judgment is void and must be vacated.

☐ B. Mistake, neglect, irregularity, or unavoidable casualty or misfortune. Defendant's failure to respond resulted from mistake, neglect, or omission of the clerk, an irregularity in obtaining the judgment, or unavoidable casualty or misfortune preventing Defendant from defending, 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"]. Okla. Stat. tit. 12, § 1031 (Third), (Seventh); § 1031.1.

☐ C. Fraud practiced by the successful party. The judgment was obtained through fraud practiced by Plaintiff or its agents, including [describe — e.g., "a false affidavit or 'sewer service' return of service," "misrepresentation of the amount owed," "concealment of the lack of any assignment"]. Okla. Stat. tit. 12, § 1031 (Fourth).

☐ D. Newly discovered evidence / other irregularity. Defendant has discovered evidence or an irregularity in obtaining the judgment that could not, with reasonable diligence, have been discovered earlier, namely: [describe]. Okla. Stat. tit. 12, § 1031 (Third); see § 651(7) (new trial — newly discovered evidence).

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

V. DEFENDANT HAS A MERITORIOUS DEFENSE

12. To obtain vacatur of a default judgment, the moving party must show a valid, meritorious defense to the underlying claim. Defendant is prepared to present one or more plausible, fact-supported defenses that, if proven, would constitute a complete defense to Plaintiff's claim:

☐ Statute of limitations. The alleged debt is time-barred. Under Oklahoma law, an action upon any contract, agreement, or promise in writing must be commenced within five (5) years (Okla. Stat. tit. 12, § 95(A)(1)); an action upon a contract express or implied not in writing, a liability created by statute, or a foreign judgment must be commenced within three (3) years (Okla. Stat. tit. 12, § 95(A)(2)). The last payment/activity on the account occurred on or about [__/__/____], more than the limitations period before suit was filed. [Verify characterization and accrual; a choice-of-law clause may import another state's period.]

☐ 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 lacks standing / no chain of assignment. Plaintiff is not the original creditor and has not proven a complete, unbroken chain of assignment showing it owns Defendant's specific account. Plaintiff 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 meritorious defense: [____________]

13. These defenses are substantiated by the facts set forth in Defendant's Affidavit, below, and the attached exhibits, and are sufficient to warrant submission of the case to a fact-finder.

VI. NO PREJUDICE TO PLAINTIFF; DEFENDANT ACTED PROMPTLY

14. No unfair prejudice. Setting aside the judgment will not unfairly prejudice Plaintiff, which retains its evidence and its claim; only the opportunity for a one-sided judgment is lost. Defendant is prepared to proceed promptly.

15. Defendant acted promptly and in good faith. Defendant's failure to appear was not willful, intentional, or in bad faith. As set forth above and in the attached Affidavit, it resulted from [lack of valid service / no actual notice / unavoidable casualty], and Defendant moved to vacate promptly after learning of the judgment.

VII. DEFENDANT'S AFFIDAVIT

STATE OF OKLAHOMA )
COUNTY OF [____________] )

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

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

2. I was never properly served with the summons and petition in this case, and I had no actual notice of this lawsuit before judgment. [State the facts: where you lived on the date of attempted service; whether you received the papers; who, if anyone, was served; how you 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 frozen"].

4. 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].

5. My failure to respond to the petition was not intentional or the result of any disregard of this Court. [State the facts establishing lack of service, no actual notice, mistake, or unavoidable casualty.]

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

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

_______________________________________
Notary Public
My commission expires: [__/__/____]

VIII. REQUEST TO STAY EXECUTION AND GARNISHMENT

16. Defendant requests that the Court suspend and stay all proceedings to enforce the judgment — including any wage garnishment, bank garnishment, levy, or other post-judgment process — pending the Court's ruling on this motion or petition. Okla. Stat. tit. 12, § 1036 authorizes the Court to suspend proceedings on the judgment, on such terms as the Court directs, while a vacatur application is pending. Absent a stay, Defendant faces immediate and irreparable harm from the garnishment of wages or funds that may be exempt and that Defendant needs for basic living expenses, even though the underlying judgment is subject to being vacated.

17. Defendant further requests that any funds already garnished or levied be held by the garnishee or the Court, and not disbursed to Plaintiff, until this matter is decided.

IX. RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that this Court:

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

B. SUSPEND and STAY all execution, garnishment, levy, and other post-judgment enforcement proceedings pending the Court's ruling (Okla. Stat. tit. 12, § 1036), and order that any funds already garnished or levied be held and not disbursed;

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

D. GRANT Defendant leave to file an Answer and defend this action on the merits, with the accompanying [proposed] Answer deemed filed as of the date of the order;

E. Set this matter for a hearing as required by Okla. Stat. tit. 12, § 1034; and

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

X. 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 / Petition to Set Aside / Vacate Default Judgment. Having considered the motion, the supporting affidavit, any response, and the applicable law — including Okla. Stat. tit. 12, §§ 1031, 1031.1, and 1033 — the Court finds that the motion is well taken and should be GRANTED.

It is therefore ORDERED that the default judgment filed on [__/__/____] is SET ASIDE and VACATED; all garnishments, levies, and executions on that judgment are RECALLED, QUASHED, and SUSPENDED, and any garnished or levied funds shall be returned to Defendant; and Defendant is granted leave to file an Answer within [____] days of this Order.

IT IS SO ORDERED this ____ day of __________, 20____.

_________________________________
District Judge

XI. SIGNATURE

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

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

XII. CERTIFICATE OF SERVICE

I hereby certify that on the [____] day of [____________], 20[____], I served a true and correct copy of the foregoing Defendant's Motion / Petition to Set Aside / Vacate Default Judgment, the supporting Affidavit, and the proposed Order upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented) in accordance with Okla. Stat. tit. 12, § 2005, by the following method:

☐ Oklahoma electronic-filing system / OSCN (notice to all counsel of record)
☐ U.S. First-Class Mail, postage prepaid
☐ Certified Mail, Return Receipt Requested
☐ Hand Delivery
☐ Summons issued and served (for a § 1033 petition)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

OKLAHOMA PRACTICE NOTES

• Two tracks / deadlines: Within 30 days of the judgment's filing, move under 12 O.S. § 1031.1 (term-time power; broad discretion). After 30 days, proceed by verified PETITION with summons under 12 O.S. § 1033, invoking a § 1031 ground, subject to the § 1038 limitations periods (commonly two (2) years for fraud or no-actual-notice grounds — verify the exact period for the ground asserted). Calendar the deadline immediately.
• Void for defective service / no actual notice: A judgment entered without valid service, or by publication/mail where the defendant had no actual notice (§ 2004(C); § 1031 (Second)), is void for lack of personal jurisdiction and may be vacated at any time. Common in debt cases where the consumer first learns of the suit through a garnishment ("sewer service").
• Meritorious defense required: Oklahoma courts require the movant to plead and show a valid defense to the underlying claim; attach the proposed Answer.
• Stay collection: Request suspension of enforcement under 12 O.S. § 1036 with the motion; ask that garnished funds be held pending the ruling.
• Hearing: Section 1034 contemplates a hearing/trial of the application to vacate; comply with any local rules on setting and notice.

Sources and References

• Oklahoma Statutes, Title 12 (Civil Procedure), Chapter 16 — Vacation and Modification of Judgments by Trial Court.
• Okla. Stat. tit. 12, § 1031 — power to vacate or modify (nine grounds): https://law.justia.com/codes/oklahoma/title-12/section-12-1031/
• Okla. Stat. tit. 12, § 1031.1 — correct/open/modify/vacate within 30 days (term-time): https://law.justia.com/codes/oklahoma/title-12/section-12-1031-1/
• Okla. Stat. tit. 12, § 1033 — proceedings by petition (with summons) after 30 days.
• Okla. Stat. tit. 12, § 1036 — suspending proceedings on the judgment (bond).
• Okla. Stat. tit. 12, § 1038 — limitations on proceedings to vacate.
• Okla. Stat. tit. 12, § 2004 — process; service of summons; § 2004(C) constructive service / no actual notice.
• Okla. Stat. tit. 12, § 95 — limitation of actions (5-yr written; 3-yr oral/implied): https://law.justia.com/codes/oklahoma/title-12/section-12-95/
• 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/
• Oklahoma State Courts Network (OSCN): https://www.oscn.net/