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

IN THE CIRCUIT COURT OF THE [____________] JUDICIAL CIRCUIT

COUNTY OF [____________], STATE OF SOUTH DAKOTA

Civ. File No. [____________]

DEFENDANT'S MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

Filed Pursuant to SDCL § 15-6-55(c) and § 15-6-60(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 SDCL § 15-6-55(c) and § 15-6-60(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 § 15-6-55(c) and § 15-6-60(b).

3. South Dakota law favors trial of cases on their merits. The decision to set aside a default judgment for "good cause shown" rests within the sound discretion of the trial court, and South Dakota courts liberally construe § 15-6-60(b) to reach the merits where the movant shows excusable conduct and a meritorious defense.

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 notice of garnishment of wages served on Defendant's employer
☐ A bank garnishment, levy, or freeze of Defendant's account
☐ A post-judgment writ of execution or supplemental proceedings
☐ A judgment lien docketed against Defendant's real 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 [☐ § 15-6-60(b)(1)–(3) (within one year) / ☐ § 15-6-60(b)(4)–(6) (reasonable time; void, satisfied, or other reason)].

III. LEGAL STANDARD

8. Section 15-6-55(c) — good cause; relief through § 15-6-60(b). "For good cause shown the court may set aside a judgment by default in accordance with § 15-6-60(b)." SDCL § 15-6-55(c). The "good cause" determination is committed to the trial court's discretion and considers, 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. Section 15-6-60(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; (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason justifying relief from the operation of the judgment. SDCL § 15-6-60(b).

10. Timing. The 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." Blare v. Blare, 302 N.W.2d 787 (S.D. 1981). Relief on the ground that the judgment is void (subsection (4)), satisfied (subsection (5)), or for any other reason justifying relief (subsection (6)) 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 SDCL § 15-6-4. 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 § 15-6-60(b)(4); the trial court has no discretion to do otherwise as to a void judgment. SDCL § 15-6-12(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 SDCL § 15-6-4. 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," "Defendant never received the papers," "Defendant first learned of the suit only through the garnishment"]. Because the Court lacked personal jurisdiction, the judgment is void and must be vacated. SDCL § 15-6-60(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 answer deadline"]. SDCL § 15-6-55(c); § 15-6-60(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"]. SDCL § 15-6-60(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]. SDCL § 15-6-60(b)(2).

☐ E. Any other reason justifying relief. [Describe extraordinary circumstances warranting relief from the judgment.] SDCL § 15-6-60(b)(6).

☐ F. Defendant has a meritorious defense (see Section V) and good cause to set aside the default. SDCL § 15-6-55(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 Dakota law, an action upon a contract, obligation, or liability, express or implied — including most consumer and open-account debt — must be commenced within six (6) years (SDCL § 15-2-13(1)). The last payment/activity on the account occurred on or about [__/__/____], more than six years before suit was filed. [Under SDCL § 15-2-29, an acknowledgment or promise offered as a new or continuing contract to avoid the Chapter 15-2 bar must be in a writing signed by the party to be charged; the section separately preserves the effect of a principal or interest payment. Confirm characterization, accrual, payments, and the applicable period before relying on this defense.]

☐ 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. SDCL § 15-6-17(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 DAKOTA )
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 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 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

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

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

VIII. REQUEST TO STAY EXECUTION AND GARNISHMENT

16. Defendant requests that the Court stay execution on the judgment — including any wage garnishment, bank garnishment, levy, or other post-judgment process — pending the Court's ruling on this motion. SDCL § 15-6-62. 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 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, garnishment, levy, and other post-judgment collection 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 execution or garnishment 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 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 SDCL § 15-6-55(c) and § 15-6-60(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 garnished or levied funds shall be returned to Defendant; and Defendant is granted leave to file an Answer within [____] days of this Order.

BY THE COURT this ____ day of __________, 20____.

_________________________________
Circuit Court Judge

XI. SIGNATURE

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

/s/ [____________________________________]
[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
South Dakota Bar No. (if attorney): [____________]
[Street Address]
[City], South Dakota [____]
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 SDCL § 15-6-5, by the following method:

☐ Electronic service through the South Dakota Odyssey 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 DAKOTA PRACTICE NOTES

• Authority: SDCL § 15-6-55(c) — "For good cause shown the court may set aside a judgment by default in accordance with § 15-6-60(b)."
• Deadline: A § 15-6-60(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. Blare v. Blare, 302 N.W.2d 787 (S.D. 1981). Reasons (4) (void), (5) (satisfied), and (6) (any other reason) require only a reasonable time. Verify the entry date and calendar immediately.
• Catch-all (6): Unlike South Carolina, South Dakota's § 15-6-60(b) retains the federal-style "any other reason justifying relief" provision (subsection (6)), which is reserved for extraordinary circumstances and is not subject to the one-year limit.
• Void for defective service: A judgment entered without valid service is void for lack of personal jurisdiction (§ 15-6-60(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 garnishment ("sewer service").
• Affidavit of merits / proposed answer: South Dakota practice generally expects a motion to set aside a default to be supported by an affidavit of merits and an accompanying proposed answer demonstrating the defense.
• Statute of limitations: Most contract / open-account debt carries a six-year period under SDCL § 15-2-13(1). Section 15-2-29 requires the specified acknowledgment or promise to be in a signed writing but preserves the effect of a principal or interest payment. Confirm characterization, accrual, payments, and the applicable period before relying on the defense.
• Stay collection: Request a stay of execution under SDCL § 15-6-62 with the motion; ask that garnished/levied funds be held pending the ruling.

Sources and References

• South Dakota Codified Laws, Title 15, Chapter 15-6 (Rules of Civil Procedure): https://sdlegislature.gov/Statutes/15-6
• SDCL § 15-6-55(c) — setting aside default: https://sdlegislature.gov/Statutes/15-6-55(c)
• SDCL § 15-6-60(b) — relief from judgment (mistake, newly discovered evidence, fraud, void judgment, satisfaction, other reason): https://sdlegislature.gov/Statutes/15-6-60(b)
• Blare v. Blare, 302 N.W.2d 787 (S.D. 1981) — one-year limit applies to § 15-6-60(b)(1)–(3): https://law.justia.com/cases/south-dakota/supreme-court/1981/13043-1.html
• SDCL § 15-2-13 (6-year limitation — contract): https://sdlegislature.gov/Statutes/15-2-13
• SDCL § 15-2-29 (writing required for acknowledgment or promise): https://sdlegislature.gov/Statutes/15-2-29
• 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/