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

VIRGINIA: IN THE [____________] COURT OF [____________] [COUNTY / CITY]

Case No. / Warrant No. [____________]

DEFENDANT'S MOTION TO SET ASIDE / VACATE DEFAULT JUDGMENT

Filed Pursuant to Va. Code § 8.01-428 (and, where applicable, Va. Sup. Ct. R. 1:1)

COMES NOW the Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by counsel], and respectfully moves this Court to set aside and vacate the default judgment entered against Defendant in this action on [__/__/____], pursuant to Va. Code § 8.01-428 and the Court's inherent authority. 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 was not validly served with process and/or the judgment is otherwise void or was obtained by fraud on the court, and Defendant has one or more meritorious defenses to the alleged debt. Defendant brings this motion promptly upon learning of the judgment.

3. Default judgments are not favored in Virginia, and the law prefers that controversies be resolved on their merits where the statutory grounds for relief are met.

II. IDENTIFICATION OF THE DEFAULT JUDGMENT

4. Court and date. The default judgment was entered by the [☐ General District Court / ☐ Circuit Court] of [____________] 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 garnishment summons served on Defendant's employer (wages)
☐ A garnishment / levy / freeze of Defendant's bank account
☐ A debtor's interrogatories / summons to answer interrogatories
☐ A recorded abstract of judgment / lien / credit report entry
☐ Other: [____________]

7. Defendant files this motion [____] days after first learning of the judgment, which is within a reasonable time and within any applicable statutory limit.

III. LEGAL STANDARD

8. Finality — Rule 1:1. A circuit court retains plenary jurisdiction to modify, vacate, or suspend a final judgment for twenty-one (21) days after its entry. Va. Sup. Ct. R. 1:1. After that period, the court's authority to disturb the judgment is limited to the grounds set out in Va. Code § 8.01-428.

9. § 8.01-428(A) — summary grounds. "Upon motion of the plaintiff or judgment debtor and after reasonable notice to the opposite party . . . the court may set aside a judgment by default . . . upon the following grounds: (i) fraud on the court, (ii) a void judgment, (iii) on proof of an accord and satisfaction, or (iv) on proof that the defendant was, at the time of service of process or entry of judgment, a servicemember as defined in 50 U.S.C. § 3911." A motion "on the ground of fraud on the court shall be made within two years from the date of the judgment or decree."

10. § 8.01-428(D) — preserved powers. The section "does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or proceeding, or to grant relief to a defendant not served with process as provided in § 8.01-322, or to set aside a judgment or decree for fraud upon the court."

11. A judgment without valid service is VOID. A court acquires personal jurisdiction over a defendant only through valid service of process. Va. Code §§ 8.01-277, 8.01-288, 8.01-296. A default judgment entered when the defendant was not properly served is void, and a void judgment "is a complete nullity" that may be set aside by the court at any time under § 8.01-428(A)(ii) and (D). Posted ("substituted") service at a former or wrong address, or service on a person not residing there, does not confer jurisdiction.

12. Service by publication. A defendant served by order of publication who did not actually appear or receive notice may petition for relief within two years of the judgment. Va. Code § 8.01-322.

IV. GROUNDS FOR SETTING ASIDE THE JUDGMENT

☐ A. The judgment is VOID — defective or no service of process; lack of jurisdiction. Defendant was never validly served with the warrant/summons and complaint as required by Va. Code §§ 8.01-277, 8.01-288, and 8.01-296. Specifically: [describe — e.g., "service was posted at an address Defendant had not occupied for [__] years (and which had been foreclosed)," "service was left with a person not a member of Defendant's family residing there," "no copy was ever mailed as required," "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. Va. Code § 8.01-428(A)(ii), (D).

☐ B. Fraud on the court. The judgment was obtained through fraud on the court, including [describe — e.g., "a false return of service / 'sewer service,'" "a knowingly false affidavit of the amount or of ownership of the debt"]. This motion is made within two years of the judgment. Va. Code § 8.01-428(A)(i).

☐ C. Accord and satisfaction. The alleged debt was the subject of an accord and satisfaction, in that [describe — e.g., "Defendant and the creditor agreed to and Defendant paid a compromised amount in full satisfaction on [__/__/____]"]. Va. Code § 8.01-428(A)(iii).

☐ D. Servicemember. Defendant was, at the time of service of process or entry of judgment, a servicemember as defined in 50 U.S.C. § 3911, entitled to the protections of the Servicemembers Civil Relief Act. Va. Code § 8.01-428(A)(iv).

☐ E. Clerical mistake. The judgment contains a clerical mistake or error arising from oversight or inadvertent omission, namely [describe], correctable at any time. Va. Code § 8.01-428(B).

☐ F. Lack of notice of final order (circuit court). Defendant, not in default, was not notified of the entry of the final order; the lack of notice did not result from a failure to exercise due diligence and denied Defendant an opportunity to pursue post-trial relief or appeal. Relief is sought within 60 days. Va. Code § 8.01-428(C).

☐ G. Within 21 days of entry (Rule 1:1). This motion is filed within 21 days of entry, while the Court retains plenary power to modify, vacate, or suspend the judgment. Va. Sup. Ct. R. 1:1.

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

V. DEFENDANT HAS A MERITORIOUS DEFENSE

13. If the judgment is set aside, 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:

☐ Statute of limitations. The alleged debt is time-barred. Under Virginia law, an action on a contract not otherwise specified that is in writing and signed by the party to be charged must be brought within five (5) years (Va. Code § 8.01-246(A)(2)); an unsigned writing or unwritten express/implied contract within three (3) years (§ 8.01-246(A)(4)). The cause of action accrued on [__/__/____] because [identify controlling event and authority], more than the limitations period before suit was filed. [Verify any part payment, written acknowledgment/new promise, medical-debt rule, or other specific limitation.]

☐ 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 Affidavit, below, and the attached exhibits.

VI. DEFENDANT'S AFFIDAVIT

COMMONWEALTH OF VIRGINIA )
[COUNTY / CITY] OF [____________] )

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

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

2. I was never validly served with the warrant/summons and complaint. [State facts: where you actually lived on the date of attempted service; whether any address used for service was current; 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].

5. [If applicable] At the time of service of process / entry of judgment, I was a servicemember on active duty as defined in 50 U.S.C. § 3911. [Attach orders / DD-214 / SCRA affidavit as Exhibit [__].]

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.

_______________________________________
[____________], Defendant

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

_______________________________________
Notary Public Registration No.: [____________]
My commission expires: [__/__/____]

VII. REQUEST TO STAY EXECUTION AND GARNISHMENT

15. 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. 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.

16. 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. [In a garnishment proceeding, consider filing a Claim for Exemption (Va. Code §§ 34-4 et seq., 8.01-512.4).]

VIII. RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that this Court:

A. SET ASIDE and VACATE the default judgment entered on [__/__/____] as void and/or for the statutory grounds set forth above;

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 garnishment summons or writ of fieri facias issued on the judgment;

D. GRANT Defendant leave to appear and defend this action on the merits;

E. Set this matter for a hearing; and

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

IX. 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 affidavit, any response, and the applicable law, including Va. Code § 8.01-428 and Va. Sup. Ct. R. 1:1, the Court finds that the default judgment is [void / was obtained by fraud on the court / subject to accord and satisfaction / entered against a servicemember] 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 appear and defend this action.

ENTERED this ____ day of __________, 20____.

_________________________________
Judge

X. SIGNATURE

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

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

XI. 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 — and provided reasonable notice as required by Va. Code § 8.01-428(A) — upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented) by the following method:

☐ Virginia electronic filing system (where applicable), 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/ [____________________________________]
[____________________________________]

VIRGINIA PRACTICE NOTES

• Rule 1:1 (the 21-day cliff): A circuit court loses plenary power over a final judgment 21 days after entry. Within 21 days, move broadly to modify/vacate/suspend. After 21 days, you are limited to the specific § 8.01-428 grounds. (GDC has its own appeal/rehearing timelines — see below.)
• § 8.01-428(A) grounds only, after finality: fraud on the court (within 2 years), a void judgment, accord and satisfaction, or servicemember status. Virginia does NOT have a Rule 60(b)-style "excusable neglect" or "mistake" reopening of a default judgment after the plenary window closes — the strongest debt-case ground is VOIDNESS for defective service.
• Void service is the key debt defense: Posted/substituted service at a former or foreclosed address, service on a non-resident, or a missing required mailing renders the judgment void and subject to being set aside at any time. Va. Code §§ 8.01-296, 8.01-428(A)(ii), (D). Consider a Special Appearance and Motion to Quash Service alongside the motion to set aside.
• Service by publication: § 8.01-322 gives a defendant served by order of publication two years to seek relief.
• GENERAL DISTRICT COURT: If judgment was entered in GDC, Va. Code § 16.1-106 generally allows only 10 days after entry to note an appeal de novo to circuit court. A separate motion for a new trial under § 16.1-97.1 must be filed within 30 days after judgment, and the court must hear and rule on it within 45 days; that statute does not alter the appeal deadline or relief under § 8.01-428. Calendar each route separately.
• Stay collection / exemptions: Ask the court to stay execution and to hold garnished funds; file a homestead/wage exemption claim (Va. Code §§ 34-4 et seq., 8.01-512.4) where funds are at risk.
• Reasonable notice: § 8.01-428(A) requires "reasonable notice to the opposite party" before the court acts — serve the motion and notice the hearing accordingly.

Sources and References

• Va. Code § 8.01-428 — Setting aside default judgments; clerical mistakes; independent actions: https://law.lis.virginia.gov/vacode/title8.01/chapter17/section8.01-428/
• Va. Sup. Ct. R. 1:1 — Finality of judgments (21 days), official Rules of the Supreme Court of Virginia, Part One: https://www.vacourts.gov/static/courts/scv/rulesofcourt.pdf
• Va. Code § 8.01-322 — relief for defendant served by publication (2 years): https://law.lis.virginia.gov/vacode/8.01-322/
• Va. Code § 8.01-296 — manner of serving process on natural persons: https://law.lis.virginia.gov/vacode/8.01-296/
• Va. Code §§ 16.1-77, 16.1-79 — GDC civil jurisdiction / Warrant in Debt: https://law.lis.virginia.gov/vacode/16.1-77/
• Va. Code § 16.1-97.1 — district-court motion for new trial (file within 30 days; ruling within 45 days): https://law.lis.virginia.gov/vacode/16.1-97.1/
• Va. Code § 16.1-106 — appeal de novo from GDC (generally 10 days): https://law.lis.virginia.gov/vacode/16.1-106/
• Va. Code § 8.01-246 — limitation of actions on contracts (5 yr / 3 yr): https://law.lis.virginia.gov/vacode/8.01-246/
• Va. Code § 8.01-229 — suspension / acknowledgment reviving limitations: https://law.lis.virginia.gov/vacode/8.01-229/
• 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/