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

IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR [____________] COUNTY

Case No. [____________]

DEFENDANT'S MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

Filed Pursuant to ORCP 69 C and ORCP 71 B and C

Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], moves this Court to set aside the order of default and to set aside and vacate the judgment by default entered against Defendant in this action on [__/__/____], pursuant to ORCP 69 C and ORCP 71 B and C. This motion is accompanied by Defendant's proposed responsive pleading as required by ORCP 71 B(1). In support, Defendant alleges 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] seeking to collect an alleged consumer debt. A judgment by default 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 appearing, has one or more meritorious defenses to the alleged debt, and brings this motion promptly upon learning of the judgment. For the reasons set forth below, the default judgment should be set aside.

3. Oregon policy favors resolution of disputes on the merits. The trial court has broad authority under ORCP 69 C and ORCP 71 to set aside a default order and judgment upon a showing of good cause and one of the grounds enumerated in ORCP 71 B.

II. IDENTIFICATION OF THE DEFAULT JUDGMENT

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

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

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

☐ A wage garnishment / writ of garnishment served on Defendant's employer
☐ A bank garnishment / levy on Defendant's account
☐ A debtor examination notice or other post-judgment process
☐ A credit report entry
☐ Other: [____________]

7. Defendant files this motion [____] days after receiving notice of the judgment, which is within a reasonable time and within the applicable limit under [☐ ORCP 71 B (within one year for reasons (a)–(c)) / ☐ ORCP 71 B(1)(d) (void judgment — reasonable time only)].

III. LEGAL STANDARD

8. ORCP 69 C — setting aside default. Under ORCP 69 C(2), the court may set aside an order of default and, when a judgment by default has been entered, may likewise set the judgment aside in accordance with ORCP 71 B and C, upon a showing of good cause.

9. ORCP 71 B — grounds. ORCP 71 B(1) provides that, on motion and upon such terms as are just, the court may relieve a party from a judgment for: "(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 64 F; (c) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment is void; or (e) the judgment has been satisfied, released, or discharged...." A motion for reasons (a), (b), and (c) must be accompanied by a pleading or motion under ORCP 21 A asserting a claim or defense, must be made within a reasonable time, and not more than one year after receipt of notice of the judgment.

10. ORCP 71 C — other relief. ORCP 71 C preserves the court's inherent power to modify a judgment within a reasonable time, to entertain an independent action for relief, to grant relief to a defendant under ORCP 7 D(6)(f), and to set aside a judgment for fraud upon the court.

11. A judgment without valid service is void. A court acquires personal jurisdiction only through valid service of summons under ORCP 7. A default judgment entered when the defendant was not properly served is void under ORCP 71 B(1)(d) for lack of personal jurisdiction and is subject only to the "reasonable time" standard, not the one-year limit. ORCP 7; ORCP 21 A.

IV. GROUNDS FOR SETTING ASIDE THE JUDGMENT

☐ A. The judgment is VOID — defective or no service of summons; lack of personal jurisdiction. Defendant was never validly served with the summons and complaint as required by ORCP 7. Specifically: [describe — e.g., "Defendant did not live at the address where service was attempted," "the proof of service reflects substituted service on a person not residing with Defendant," "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 set aside. ORCP 71 B(1)(d).

☐ B. Mistake, inadvertence, surprise, or excusable neglect. Defendant's failure to appear was the result of excusable neglect and not culpable conduct, 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 relied on an agreement or understanding regarding an extension"]. ORCP 71 B(1)(a).

☐ C. Fraud, misrepresentation, or misconduct. The judgment was obtained through fraud, misrepresentation, or other misconduct of Plaintiff or its agents, including [describe — e.g., "a false declaration or 'sewer service' proof of service," "misrepresentation of the amount owed," "concealment of the lack of any assignment"]. ORCP 71 B(1)(c).

☐ D. Newly discovered evidence. Defendant has discovered evidence that, by due diligence, could not have been discovered in time to move for a new trial, namely: [describe]. ORCP 71 B(1)(b).

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

V. DEFENDANT HAS A MERITORIOUS DEFENSE

12. Defendant is prepared to present one or more plausible, fact-supported defenses that, if proven, would constitute a complete defense to Plaintiff's claim. As required by ORCP 71 B(1), Defendant's proposed Answer is submitted with this motion. Defendant asserts the following meritorious defense(s):

☐ Statute of limitations. The alleged debt is time-barred. Under ORS 12.080, an action upon a contract or liability, express or implied, must be commenced within six (6) years. The last payment/activity on the account occurred on or about [__/__/____], more than six years before suit was filed. [Verify accrual; a choice-of-law clause in the cardholder agreement may import another state's period. A judgment is enforceable for 10 years (ORS 18.180), renewable.]

☐ 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 Declaration, 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 Declaration, it resulted from [lack of valid service / excusable neglect], and Defendant moved to set aside the judgment promptly after receiving notice of it.

VII. DEFENDANT'S DECLARATION

DECLARATION OF [____________]

I, [____________], hereby declare:

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

2. I was never properly served with the summons and complaint in this case. [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 received notice that a judgment had been entered against me on [__/__/____], when [describe — e.g., "my wages were garnished" / "my bank account was levied"].

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 appear was not intentional or the result of any disregard of this Court. [State the facts establishing excusable neglect or lack of service.]

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

I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.

_______________________________________
[____________], Defendant
Dated: [__/__/____]

VIII. REQUEST TO STAY EXECUTION AND GARNISHMENT

16. Defendant requests that the Court stay enforcement of the judgment — including any wage garnishment, bank garnishment, levy, or other post-judgment process — pending the Court's ruling on this motion. 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 set aside.

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 motion is decided.

IX. RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that this Court:

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

B. STAY all garnishment, levy, and other enforcement proceedings pending the Court's ruling, and order that any funds already garnished or levied be held and not disbursed;

C. QUASH any outstanding writ of garnishment or other enforcement process issued on the judgment;

D. ACCEPT for filing Defendant's proposed Answer, submitted herewith, and permit Defendant to 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.

X. PROPOSED ORDER

A proposed Order Setting Aside 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, the proposed Answer, any response, and the applicable law — including ORCP 69 C and ORCP 71 B and C — the Court finds good cause and that the motion should be GRANTED.

It is therefore ORDERED that the order of default and the judgment by default entered on [__/__/____] are SET ASIDE and VACATED; all garnishments, levies, and enforcement on that judgment are QUASHED and STAYED, and any garnished or levied funds shall be returned to Defendant; and Defendant's proposed Answer is accepted for filing as of the date of this Order.

DATED this ____ day of __________, 20____.

_________________________________
Circuit Court Judge

XI. SIGNATURE

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

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

XII. CERTIFICATE OF SERVICE

I certify that on the [____] day of [____________], 20[____], I served a true and complete copy of the foregoing Defendant's Motion to Set Aside / Vacate Default Judgment, the supporting Declaration, the proposed Answer, and the proposed Order upon Plaintiff's attorney of record (or upon Plaintiff, if self-represented), as provided in ORCP 9 B, by the following method:

☐ Oregon eCourt / File & Serve (notice to all parties of record)
☐ U.S. First-Class Mail, postage prepaid
☐ Hand Delivery
☐ Service of summons as provided in ORCP 7 (if more than one year after notice)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

OREGON PRACTICE NOTES

• Deadline: ORCP 69 C(2) lets the court set aside a default order/judgment under ORCP 71 B and C. Under ORCP 71 B, the motion must be made within a reasonable time, and for reasons (a)–(c) NOT MORE THAN ONE (1) YEAR after the moving party receives notice of the judgment. A motion under ORCP 71 B(1)(d) (void judgment) is subject only to the "reasonable time" standard. Calendar immediately.
• Attach the responsive pleading: For ORCP 71 B(1)(a)–(c) relief, the motion MUST be accompanied by a pleading or ORCP 21 A motion asserting a claim or defense (ORCP 71 B(1)); Oregon courts have enforced this requirement. Submit the proposed Answer with the motion.
• Void for defective service: A judgment entered without valid service under ORCP 7 is void for lack of personal jurisdiction (ORCP 71 B(1)(d)) and is not limited to the one-year period. Common in debt cases where the consumer first learns of the suit through a garnishment ("sewer service").
• Stay collection: Oregon money judgments are enforced by writ of garnishment (ORS Chapter 18), not automatic execution; ask the Court to stay enforcement and direct the garnishee to hold funds. Claim applicable wage and benefit exemptions (ORS 18.345–18.385).
• Statute of limitations on debt: 6 years for actions on a contract or liability, express or implied (ORS 12.080); a judgment is enforceable for 10 years (ORS 18.180), renewable. Confirm characterization and accrual before relying.

Sources and References

• Oregon Rules of Civil Procedure: https://www.courts.oregon.gov/rules/Pages/orcp.aspx
• ORCP 69 — default orders and judgments: https://oregon.public.law/rules-of-civil-procedure/orcp-69-default-orders-and-judgments/
• ORCP 71 — relief from judgment or order: https://oregon.public.law/rules-of-civil-procedure/orcp-71-relief-from-judgment-or-order/
• ORCP 7 — summons; service of summons.
• ORS 12.080 — action on contract or liability (6 years): https://oregon.public.law/statutes/ors_12.080
• ORS 18.180 — judgment lien / enforcement period (10 years, renewable).
• ORS 646.639 — Unlawful Collection Practices (amended by SB 1595, eff. 2024): https://oregon.public.law/statutes/ors_646.639
• 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/