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

STATE OF SOUTH CAROLINA

COUNTY OF [____________] — [☐ COURT OF COMMON PLEAS (CIRCUIT COURT) / ☐ MAGISTRATE COURT]

Civil Action No. [____________]

DEFENDANT'S MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

Filed Pursuant to S.C. R. Civ. P. 55(c) and 60(b)

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 in this action on [__/__/____], pursuant to S.C. R. Civ. P. 55(c) and 60(b). 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 motion promptly upon learning of the judgment. For the reasons set forth below, good cause exists to set aside the default judgment under Rule 55(c) and Rule 60(b).

3. South Carolina law strongly favors trial on the merits over default. The decision to set aside a default judgment for "good cause shown" is addressed to the sound discretion of the trial court, guided by South Carolina's policy preference that cases be resolved on their merits.

II. IDENTIFICATION OF THE DEFAULT JUDGMENT

4. Date of judgment. The default judgment was entered 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 bank levy, freeze, or restraint of Defendant's account
☐ A post-judgment writ of execution, supplemental proceedings, or examination notice
☐ A judgment lien recorded against Defendant's property
☐ A credit report entry
☐ Other: [____________]

7. Defendant files this motion [____] days after first learning of the judgment, which is within a reasonable time and within the applicable deadline under [☐ Rule 55(c) / ☐ Rule 60(b)(1)–(3) (within one year) / ☐ Rule 60(b)(4)–(5) (reasonable time; void or satisfied judgment)].

III. LEGAL STANDARD

8. Rule 55(c) — good cause; relief through Rule 60(b). "For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." S.C. R. Civ. P. 55(c). The "good cause" inquiry is committed to the trial court's discretion and weighs, among other things, the promptness of the motion, the reason for the default, the presence of a meritorious defense, and any prejudice to the opposing party.

9. Rule 60(b) — relief from a final judgment. On motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; or (5) the judgment has been satisfied, released, or discharged. S.C. R. Civ. P. 60(b).

10. Timing. A Rule 60(b) motion "shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken." Relief on the ground that the judgment is void (Rule 60(b)(4)) or has been satisfied (Rule 60(b)(5)) is not subject to the one-year limit and requires only a reasonable time.

11. A judgment without valid service is void. A court acquires personal jurisdiction over a defendant only through valid service of process in accordance with S.C. R. Civ. P. 4. A default judgment entered when the defendant was not properly served is void for lack of personal jurisdiction and is due to be set aside under Rule 60(b)(4); the trial court has no discretion to do otherwise as to a void judgment. S.C. R. Civ. P. 12(b)(2), (4), (5).

IV. GROUNDS FOR SETTING ASIDE THE JUDGMENT

☐ A. The judgment is VOID — defective or no service of process; lack of personal jurisdiction. Defendant was never validly served with the summons and complaint as required by S.C. R. Civ. P. 4. Specifically: [describe — e.g., "Defendant did not live at the address where service was attempted," "the affidavit/return reflects service on a person not authorized to accept it," "Defendant never received the certified-mail summons," "Defendant first learned of the suit only through the bank levy"]. Because the Court lacked personal jurisdiction, the judgment is void and must be vacated. S.C. R. Civ. P. 60(b)(4).

☐ B. Mistake, inadvertence, surprise, or excusable neglect. Defendant's failure to answer was the result of mistake, inadvertence, surprise, or excusable neglect, in that: [describe — e.g., "Defendant was hospitalized," "the papers were misdelivered or received after the deadline," "Defendant reasonably believed the debt had been disputed/resolved with the collector," "Defendant did not understand the 30-day deadline"]. S.C. R. Civ. P. 55(c); 60(b)(1).

☐ C. Fraud, misrepresentation, or other misconduct. The judgment was obtained through fraud, misrepresentation, or misconduct 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 of Defendant's account"]. S.C. R. Civ. P. 60(b)(3).

☐ 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]. S.C. R. Civ. P. 60(b)(2).

☐ E. Defendant has a meritorious defense (see Section V) and good cause to set aside the default. S.C. R. Civ. P. 55(c).

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. Defendant asserts the following meritorious defense(s):

☐ Statute of limitations. The alleged debt is time-barred. Under South Carolina law, an action upon a contract, obligation, or liability, express or implied — including most consumer and open-account debt — must be commenced within three (3) years (S.C. Code Ann. § 15-3-530(1)). The last payment/activity on the account occurred on or about [__/__/____], more than three years before suit was filed. [A written acknowledgment or new written promise to pay — or a partial payment — may revive a time-barred debt under S.C. Code Ann. § 15-3-120; confirm the accrual/last-payment date and whether any longer period (e.g., a sealed instrument under § 15-3-520) applies.]

☐ 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. A debt buyer may recover no amount not authorized by the original contract. 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. S.C. R. Civ. P. 17(a).

☐ 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 adjudication of this case on the merits.

VI. NO UNFAIR PREJUDICE TO PLAINTIFF; DEFAULT NOT WILLFUL

14. No unfair prejudice. Setting aside the judgment will not unfairly prejudice Plaintiff. The relevant inquiry concerns prejudice from reopening the case, not the mere loss of the default. Plaintiff retains its evidence and its claim; only the opportunity for a one-sided judgment is lost. Defendant is prepared to proceed promptly.

15. Default not willful. Defendant's failure to answer was not willful, intentional, or in bad faith. As set forth above and in the attached Affidavit, it resulted from [lack of valid service / excusable neglect], not from any deliberate disregard of the Court's process.

VII. DEFENDANT'S AFFIDAVIT

STATE OF SOUTH CAROLINA )
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 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 learned that a judgment had been entered against me on [__/__/____], when [describe — e.g., "my bank account was levied" / "a judgment lien appeared against my property"].

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 complaint 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 default judgment, allow me to defend this case on the merits, and stay any collection efforts in the meantime.

_______________________________________
[____________], Defendant

Sworn to and subscribed before me this [____] day of [____________], 20[____].

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

VIII. REQUEST TO STAY EXECUTION AND COLLECTION

16. Defendant requests that the Court stay execution on the judgment — including any writ of execution, bank levy, supplemental proceedings, or other post-judgment process — pending the Court's ruling on this motion. S.C. R. Civ. P. 62. Absent a stay, Defendant faces immediate and irreparable harm from the levy of 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 levied or restrained be held by the levying officer, the bank, 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 and VACATE the default judgment entered on [__/__/____];

B. STAY all execution, levy, supplemental proceedings, and other post-judgment collection pending the Court's ruling, and order that any funds already levied or restrained be held and not disbursed;

C. QUASH any outstanding writ of execution, levy, or garnishment issued on the judgment (including any wage garnishment prohibited by S.C. Code Ann. § 37-5-104);

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 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 affidavit, any response, and the applicable law — including S.C. R. Civ. P. 55(c) and 60(b) — the Court finds that good cause has been shown and that the motion should be GRANTED.

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

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

_________________________________
Presiding Judge / Magistrate

XI. SIGNATURE

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

/s/ [____________________________________]
[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
South Carolina Bar No. (if attorney): [____________]
[Street Address]
[City], South Carolina [____]
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 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 S.C. R. Civ. P. 5, by the following method:

☐ South Carolina Electronic Filing (E-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/ [____________________________________]
[____________________________________]

SOUTH CAROLINA PRACTICE NOTES

• Authority: S.C. R. Civ. P. 55(c) — "For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)."
• Deadline: A Rule 60(b) motion must be made within a reasonable time; for reasons (1) mistake/excusable neglect, (2) newly discovered evidence, and (3) fraud, not more than ONE YEAR after entry. Reasons (4) (void judgment) and (5) (satisfied) require only a reasonable time. Verify the entry date and calendar immediately.
• No subsection (6): South Carolina's Rule 60(b) deliberately omits the Federal Rule's catch-all "any other reason" provision. The grounds are (1)–(5) only.
• Void for defective service: A judgment entered without valid service is void for lack of personal jurisdiction (Rule 60(b)(4)); the court has no discretion and must set it aside. Common in debt cases where the consumer first learns of suit through a bank levy or judgment lien ("sewer service").
• No wage garnishment for consumer debt: Under S.C. Code Ann. § 37-5-104, a creditor generally may not garnish earnings to collect a consumer credit sale, lease, or loan. If a wage garnishment issued on a consumer debt, move to quash it and consider an FDCPA claim.
• Stay collection: Request a stay of execution under Rule 62 with the motion; ask that levied/restrained funds be held pending the ruling.
• Attach the proposed Answer: Many judges expect the movant's proposed responsive pleading to accompany the motion so the case can proceed immediately if relief is granted.

Sources and References

• South Carolina Rules of Civil Procedure: https://www.sccourts.org/resources/judicial-community/court-rules/civil/
• S.C. R. Civ. P. 55 (Default) — Rule 55(c) setting aside default: https://www.sccourts.org/resources/judicial-community/court-rules/civil/rule-55/
• S.C. R. Civ. P. 60 (Relief from Judgment or Order): https://www.sccourts.org/resources/judicial-community/court-rules/civil/rule-60/
• S.C. Code Ann. § 15-3-530 (3-year limitation — contract/open account): https://www.scstatehouse.gov/code/t15c003.php
• S.C. Code Ann. § 15-3-120 (acknowledgment / revival): https://www.scstatehouse.gov/code/t15c003.php
• S.C. Code Ann. § 37-5-104 (no garnishment of consumer-debt earnings): https://www.scstatehouse.gov/code/t37c005.php
• 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/
• South Carolina Department of Consumer Affairs — Fair Debt Collection FAQs: https://consumer.sc.gov/consumer-faqs/fair-debt-collection-faqs