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

IN THE [____________] COURT, [____________] COUNTY, STATE OF UTAH

Case No. [____________]
Judge / Commissioner: [____________]

DEFENDANT'S MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

Filed Pursuant to Utah 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 Utah 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] seeks 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.

3. Utah law strongly favors the resolution of disputes on their merits. Because Rule 60(b) "is equitable in nature, a district court should exercise its discretion in favor of granting relief so that controversies can be decided on the merits." Menzies v. Galetka, 2006 UT 81, ¶ 54, 150 P.3d 480.

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 writ of garnishment of wages served on Defendant's employer
☐ A garnishment, levy, or freeze of Defendant's bank account
☐ A post-judgment debtor examination / supplemental order notice
☐ 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 limit under [☐ Rule 60(b)(1)-(3) (within 90 days of entry) / ☐ Rule 60(b)(4) (void) or 60(b)(6) (reasonable time)].

III. LEGAL STANDARD

8. Rule 55(c). "The court may set aside an entry of default for good cause, and it may set aside a default judgment in accordance with Rule 60(b)." Utah R. Civ. P. 55(c).

9. Rule 60(b) — grounds for relief. On motion and upon just terms, the court may relieve a party from a final judgment for, among other reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time; (3) fraud, misrepresentation, or other misconduct of an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; or (6) any other reason that justifies relief. Utah R. Civ. P. 60(b).

10. Timing. A Rule 60(b) motion must be filed within a reasonable time and, for grounds (b)(1), (2), and (3), not more than 90 days after entry of the judgment. A motion on the ground that the judgment is void (b)(4), or under (b)(6), requires only filing within a reasonable time.

11. Broad, equity-driven discretion; merits favored. "A district court has broad discretion to rule on a motion to set aside a default judgment under rule 60(b)," and because the rule is equitable it "should exercise its discretion in favor of granting relief so that controversies can be decided on the merits." Menzies, 2006 UT 81, ¶ 54. To set aside a default judgment under Rule 60(b)(1), a movant must generally show timeliness, a basis under the rule (e.g., excusable neglect not the result of the movant's own culpable conduct), and a meritorious defense.

12. A judgment without valid service is void. A court acquires personal jurisdiction only through valid service of process under Utah R. Civ. P. 4. A default judgment entered when the defendant was not properly served is void for lack of personal jurisdiction and must be set aside under Rule 60(b)(4); for a void judgment the court has no discretion to do otherwise. Utah 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 Utah R. Civ. P. 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 or not residing there," "no one personally delivered the papers to Defendant," "Defendant first learned of the suit only through the garnishment"]. Because the Court lacked personal jurisdiction, the judgment is void and must be vacated. Utah R. Civ. P. 60(b)(4).

☐ B. Mistake, inadvertence, surprise, or excusable neglect. Defendant's failure to respond resulted from excusable neglect and not from 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 did not understand the deadline"]. Defendant exercised the diligence of a reasonable, prudent person under the circumstances. Utah R. Civ. P. 60(b)(1).

☐ 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 affidavit or 'sewer service' return of service," "misrepresentation of the amount owed," "concealment of the lack of any assignment"]. Utah R. Civ. P. 60(b)(3).

☐ D. Newly discovered evidence. Defendant has discovered evidence that could not, with reasonable diligence, have been discovered earlier, namely: [describe]. Utah R. Civ. P. 60(b)(2).

☐ E. Any other reason justifying relief. [Describe.] Utah R. Civ. P. 60(b)(6).

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

V. DEFENDANT HAS A MERITORIOUS DEFENSE

13. Defendant is prepared to present one or more meritorious, fact-supported defenses that, if proven, would constitute a complete or substantial defense to Plaintiff's claim. Defendant asserts the following:

☐ Statute of limitations. Section 78B-2-307(1) allows four years after the last charge or last payment for its listed contract, obligation, or liability not founded on a written instrument and its listed open accounts. Record the instrument/account classification, last charge, last payment, filing date, and any other controlling period before alleging that the debt was time-barred: [________________________________].

☐ 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. [Attach FTC Identity Theft Report / police report as Exhibit [__].]

☐ Wrong amount. The judgment amount 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: [____________]

14. These defenses are substantiated by the facts in Defendant's Declaration, below, and the attached exhibits, and are sufficient to warrant a determination on the merits.

VI. NO UNFAIR PREJUDICE TO PLAINTIFF; CONDUCT NOT CULPABLE

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

16. Conduct not culpable. Defendant's failure to appear was not willful, intentional, or in bad faith. It resulted from [lack of valid service / excusable neglect], not from any deliberate disregard of the Court's process.

VII. DEFENDANT'S DECLARATION

I, [____________], declare under penalty of perjury under the laws of the State of Utah that the following is true and correct:

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

2. I was never properly served with the summons and complaint. [State facts: where you lived on the date of attempted service; whether you ever 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., date of last payment, that the account is not mine, that the amount is wrong, that the debt was discharged].

5. My failure to respond 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 on the merits, and stay any collection efforts in the meantime.

Executed on [__/__/____] at [City], [State].

_______________________________________
[____________], Defendant

VIII. REQUEST TO STAY EXECUTION AND GARNISHMENT

17. 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. Utah R. Civ. P. 62. Absent a stay, Defendant faces immediate and irreparable harm from the garnishment of wages or funds that may be exempt (see Utah R. Civ. P. 64D; Utah Code Title 78B, Chapter 5, Part 5) and that Defendant needs for basic living expenses, even though the underlying judgment is subject to being vacated.

18. 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 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 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 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.

[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, any response, and the applicable law, including Utah R. Civ. P. 55(c) and 60(b), the Court finds good cause 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.

DATED this ____ day of __________, 20____.

_________________________________
District Court Judge / Commissioner

XI. SIGNATURE

DATED this [____] day of [____________], 20[____].

/s/ [____________________________________]
[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
Utah State Bar No. (if attorney): [____________]
[Street Address]
[City], Utah [____]
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 Declaration, and the proposed Order upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented) in accordance with Utah R. Civ. P. 5, by the following method:

☐ Utah Courts electronic filing system (MyCase / Greenfiling), notice to all counsel of record
☐ U.S. First-Class Mail, postage prepaid
☐ Email (by agreement / where permitted)
☐ Hand Delivery

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

UTAH PRACTICE NOTES

• Deadline (CRITICAL — 90 days, not 1 year): A Utah R. Civ. P. 60(b) motion must be filed within a reasonable time and, for grounds (b)(1) (mistake/excusable neglect), (b)(2) (newly discovered evidence), and (b)(3) (fraud), not more than 90 days after entry of the judgment. Utah's outer limit for these grounds is 90 days — shorter than the federal one-year limit. A void-judgment motion under (b)(4) and a (b)(6) motion need only be within a "reasonable time." Verify the entry date and calendar immediately.
• Two-document rule: Rule 55(c) lets the court set aside an entry of default for good cause and set aside a default judgment under Rule 60(b). Confirm which has been entered.
• Meritorious defense: Relief under Rule 60(b)(1) generally requires the movant to show a meritorious defense in addition to a timely, non-culpable basis for the default. Menzies v. Galetka, 2006 UT 81.
• Void for defective service: A judgment entered without valid service is void for lack of personal jurisdiction (Rule 60(b)(4)); the court must set it aside. Common in debt cases where the consumer first learns of suit through garnishment ("sewer service").
• Hearing/page limits: Many Utah courts require a Notice of Hearing and observe page limits (Utah R. Civ. P. 7 / 101). Check local practice.
• Stay collection: Request a stay of execution/garnishment under Rule 62 with the motion; ask that garnished funds be held pending the ruling.
• Attach the proposed Answer: Many judges expect the proposed responsive pleading to accompany the motion so the case can proceed immediately if relief is granted.

Sources and References

• Utah Rules of Civil Procedure: https://www.utcourts.gov/en/about/courts/rules.html
• Utah R. Civ. P. 55 — Default; Default Judgment; Setting Aside: https://legacy.utcourts.gov/rules/view.php?type=urcp&rule=55
• Utah R. Civ. P. 60 — Relief from Judgment or Order (90-day limit for (b)(1)-(3)): https://legacy.utcourts.gov/rules/view.php?type=urcp&rule=60
• Utah Courts Self-Help — Motion to Set Aside Default or Judgment: https://www.utcourts.gov/en/self-help/legal-help/procedures/filing/motions/set-aside.html
• Menzies v. Galetka, 2006 UT 81, 150 P.3d 480 — broad discretion; resolve on the merits.
• Utah Code § 78B-2-309 (6-year written contract): https://le.utah.gov/xcode/Title78B/Chapter2/78B-2-S309.html
• Utah Code § 78B-2-307 (4-year oral/open account): https://le.utah.gov/xcode/Title78B/Chapter2/78B-2-S307.html
• 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/