North Dakota Motion to Vacate a Judgment

Introduction

Key Things to Know

1. 1

   North Dakota's rule is N.D.R.Civ.P. 60(b). On motion and just terms, the court may relieve a party from a final judgment, order or proceeding for listed reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation or misconduct by an opposing party; (4) the judgment is void; (5) satisfaction, release, discharge, a reversed or vacated earlier judgment, or prospective application no longer equitable; and (6) any other reason that justifies relief.

2. 2

   The one-year clock depends on how the judgment was entered. Under Rule 60(c)(1), a motion must be made within a reasonable time, and for reasons (1) mistake, inadvertence, surprise or excusable neglect, (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b), and (3) fraud, misrepresentation or misconduct by an opposing party, no more than a year after notice of entry of the judgment or order if the opposing party appeared, but not more than one year after a default judgment has been entered.

3. 3

   For (4) a void judgment, (5) a judgment satisfied, released, discharged, based on a reversed or vacated earlier judgment or no longer equitable to apply prospectively, and (6) any other reason that justifies relief, Rule 60(c)(1) says within a reasonable time. Move promptly once you learn of the judgment.

4. 4

   For a debt collection default, the North Dakota Legal Self Help Center packet says the judge won't grant relief unless you have a legitimate argument to make in the original case, called a valid or meritorious defense. It also says inability to pay the debt is not a meritorious defense, and the judge can't order relief from a default judgment on inability to pay alone.

5. 5

   Filing does not by itself stop enforcement. Rule 60(c)(2) says the motion does not affect the judgment's finality or suspend its operation. Separately, except as provided in Rule 62(c) and (d), Rule 62(a) stays execution for 30 days after filing notice of entry of judgment or entry of default judgment unless the court orders otherwise, and under Rule 62(b) a party may obtain a stay at any time after judgment by providing a bond or other security, effective when the court approves it.

6. 6

   The Self Help Center's packet for a Motion for Relief from Default Judgment (Debt Collection) includes Form MP4, a Declaration in Support, which is your written statement of the facts that support your Brief in Support of Motion. The packet points to N.D.R.Ct. 3.2 for motions. North Dakota did not adopt the federal Rule 55(c) set-aside provision, so default judgments run through Rule 60(b); also see /legal-document/set-aside-default/north-dakota.

7. 7

   Small claims has its own features. Under N.D.C.C. ch. 27-08.1, if the court receives no request for a hearing or election to remove to district court within twenty days of service, judgment may be entered against the defendant by default. The defendant waives the right to appeal on receiving the order for appearance unless the defendant removes the case to district court. Ask the clerk how to seek relief from a small claims judgment.

North Dakota Requirements for Motion to Vacate

• Grounds Under Rule 60(b)

  (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud or misconduct by an opposing party; (4) void judgment; (5) satisfied, reversed or no longer equitable; (6) any other reason that justifies relief.

• Reasonable Time, One-Year Cap

  Rule 60(c)(1): within a reasonable time; for (1) mistake or excusable neglect, (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b), and (3) fraud or misconduct, no more than a year after notice of entry if the opposing party appeared, but not more than one year after a default judgment is entered.

• Defense for Debt Collection Default

  Self Help Center packet for a motion for relief from a debt collection default judgment: the judge won't grant relief unless you have a valid, or meritorious, defense in the original case; inability to pay the debt alone is not one.

• Declaration in Support

  Form MP4: the defendant's written statement of the facts that support the Brief in Support of Motion. Motions follow N.D.R.Ct. 3.2.

• No Suspension of the Judgment

  Rule 60(c)(2): the motion does not affect the judgment's finality or suspend its operation.

• Stays Under Rule 62

  Rule 62(a): except as provided in Rule 62(c) and (d), execution is stayed 30 days after filing notice of entry of judgment or entry of default judgment unless the court orders otherwise. Rule 62(b): a stay at any time after judgment by court-approved bond or other security.

• Defaults Run Through Rule 60(b)

  N.D.R.Civ.P. 55 note: the federal set-aside provision was not adopted; see Rule 60(b) for relief from a judgment or order.

• Small Claims Default and Appeal

  N.D.C.C. ch. 27-08.1: default may be entered if no hearing request or removal election is received within twenty days of service; the defendant waives appeal unless the case is removed to district court.