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How to Set Aside a Default Judgment

By Michael Kind, Esq., Guest Blogger

Kind Law
8860 S. Maryland Parkway, Suite 106, Las Vegas, Nevada 89123
(702) 337-2322
(844) 399-KIND (5463)

This post discusses the rules and caselaw relating to consumers filing a motion to set aside a default judgment in Las Vegas, Nevada.  When a consumer has a default judgment entered against him or her, the company who got the judgment can try to collect the money judgment by garnishing wages, levying bank accounts, taking cars, among other methods of collecting the judgment.

     The rule to set aside a default judgment applies regardless of whether the debt is for credit cards, car loan, HOA debt, payday loans, personal loans, or other debts.  If a default judgment has been granted against you, there is still hope.

Applicable Rules of Civil Procedure

     Rule 60(b) of the Nevada Rules of Civil Procedure (“NRCP”) and the Justice Court Rules of Civil Procedure (“JCRCP”) provides that, upon a motion to set aside, the court may relieve a party from a final judgment or order for the following reasons: “(1) mistake, inadvertence, surprise, or excusable neglect; . . . (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; or, (5) the judgment has been satisfied. . . .”  The JCRCP apply in Nevada’s Justice Courts, while the NRCP apply in Nevada’s District Courts.

      The Nevada Supreme Court has ruled Nevada’s public policy requires cases be adjudicated on their merits where possible.  E.g.Kahn v. Orme, 108 Nev. 510, 516, 835 P.2d 790, 794 (1992).   “The salutary purpose of Rule 60(b) is to redress any injustices that may have resulted because of excusable neglect or the wrongs of the opposing party. Rule 60 should be liberally construed to effectuate that purpose.” Nev. Indus. Dev. v. Benedetti, 103 Nev. 360, 364, 741 P.2d 802, 805 (1987) (citing Mendenhall v. Kingston, 610 P.2d 1287, 1289 (Utah 1980)).

     Setting aside a judgment rests within the sound discretion of the district court.  Bennett v. Fid. & Deposit Co., 396 F.2d 909, 911 (9th Cir. 1968) (citing Smith v. Stone, 308 F.2d 15, 17-18 (9th Cir. 1962)); Cicerchia v. Cicerchia, 77 Nev. 158, 161, 360 P.2d 839, 841 (1961); Bryant v. Gibbs, 69 Nev.  167, 243 P.2d 1050.

Consumers do not Need to Show a Winning Case to Have a Judgment Set Aside

     In some states, a consumer who is trying to have a judgment set aside must show that they have a meritorious case.  That means that the consumer needs to show that once the judgment is set aside, she will be able to present a defense on the merits in the case (for example, “it’s not my debt” or “I already paid the credit card bill”).  In Nevada, a consumer does not need to make such a showing.  “[A] party need not show a meritorious defense in order to have a court set aside a default judgment.” Epstein v. Epstein, 113 Nev. 1401, 1405, 950 P.2d 771, 773 (1997).

Judgments Should be Set Aside When the Default is Not the Consumer’s Fault

     The court may set aside the default judgment if the consumer can show that the default judgment was not her fault.  Cicerchia v. Cicerchia, 77 Nev. 158, 160, 360 P.2d 839, 840 (1961) (finding the court’s setting aside of default judgment was proper when the default was not the fault of the defendant); Velasco v. Mis Amigos Meat Mkt., Inc., 2009 U.S. Dist. LEXIS 20604, at *6 (E.D. Cal. Mar. 16, 2009) (setting aside default since it was “clear that defendants intend to proceed in the defense of this action, thus promoting the overriding public policy that cases be decided on their merits.”); see also Velasco v. Mis Amigos Meat Mkt., Inc., 2009 U.S. Dist. LEXIS 20604, at *14 (E.D. Cal. Mar. 16, 2009) (“Even a final judgment of default may be successfully challenged based upon a showing of the defaulting party’s ‘mistake, inadvertence, surprise, or excusable neglect.’”).

Plaintiffs are Generally Not Prejudiced (Harmed) by a Short Delay

     When the case involves a breach of contract claim based on a defaulted debt, courts have found those matters not time sensitive.  See Velasco v. Mis Amigos Meat Mkt., Inc., 2009 U.S. Dist. LEXIS 20604, at *16 (E.D. Cal. Mar. 16, 2009) (“[A] mere delay in satisfying plaintiff’s claim, if he should ultimately succeed at trial, is not sufficient prejudice to require denial of a motion to set aside default.”).

 

For more information regarding setting aside a default in a consumer debt matter, contact Mike.

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on acting as an Arbitrator and Mediator.

Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.

The information provided on this site does not, and is not intended to constitute legal advice. You understand each legal matter should be considered to be unique and subject to varying results. You should not take or refrain from taking action based on any information contained on this website without first consulting legal counsel, as it is not intended to advise you on your particular matter. Further, you understand that no guarantee is given that the information contained herein is an accurate statement of the law at any given point in time, as the law is constantly changing. Guest bloggers are responsible for their own content, which is not to be construed as an article authored by Jay Young. Please see http://nevadalaw.info/disclaimer

 

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