South Carolina Motion to Vacate a Judgment

Introduction

Key Things to Know

1. 1

   South Carolina's tool is a motion for relief from judgment under SCRCP 60(b): on motion and upon such terms as are just, the court may relieve a party from a final judgment, order, or proceeding for the listed reasons. Relief is up to the court, and you must show a listed reason.

2. 2

   The listed reasons are (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 under Rule 59(b); (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; and (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.

3. 3

   The Note to Rule 60(b) says it deletes subsection (6) of the Federal Rule, which permits relief for any other reason justifying relief from the operation of the judgment. In South Carolina the listed reasons end at (5).

4. 4

   The motion must be made within a reasonable time, and for reasons (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 under Rule 59(b), and (3) fraud, misrepresentation, or other misconduct of an adverse party, not more than one year after the judgment, order or proceeding was entered or taken. The Note says relief under (4) and (5) is permitted after one year, but within a reasonable time, when the judgment is void or has been satisfied.

5. 5

   A Rule 60(b) motion does not affect the finality of a judgment or suspend its operation, so filing does not by itself stop enforcement. Under SCRCP 62(b), the court in its discretion, and on conditions for the security of the adverse party, may stay execution pending a Rule 60 motion. Ask for that stay in writing.

6. 6

   Rule 60(b) does not limit the court's power to entertain an independent action to relieve a party from a judgment, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela and bills of review are abolished.

7. 7

   Under SCRCP 55(c), a default judgment may be set aside in accordance with Rule 60(b). For a default judgment, also see /legal-document/set-aside-default/south-carolina.

South Carolina Requirements for Motion to Vacate

• Rule 60(b) Motion

  SCRCP 60(b): on motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the listed reasons.

• Five Listed Reasons

  SCRCP 60(b)(1)-(5): mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); fraud, misrepresentation, or other misconduct of an adverse party; void judgment; satisfied, released, discharged, prior judgment reversed or otherwise vacated, or no longer equitable. The Note says federal subsection (6) is deleted.

• One-Year Limit for (1)-(3)

  SCRCP 60(b): within a reasonable time, and for reasons (1) mistake or excusable neglect, (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b), and (3) fraud or misconduct of an adverse party, not more than one year after the judgment, order or proceeding was entered or taken. Under the Note, (4) and (5) may be raised after one year within a reasonable time when the judgment is void or satisfied.

• No Suspension; Discretionary Stay

  SCRCP 60(b): the motion does not affect finality or suspend operation. SCRCP 62(b): in its discretion and on conditions for the security of the adverse party, the court may stay execution pending a Rule 60 motion.

• Independent Action

  SCRCP 60(b) does not limit an independent action to relieve a party from a judgment, or setting aside a judgment for fraud upon the court. Coram nobis, coram vobis, audita querela and bills of review are abolished.

• Default Judgments

  SCRCP 55(c): for good cause shown the court may set aside an entry of default and may set aside a judgment by default in accordance with Rule 60(b).

• Reason and Timeliness Statement

  Name the Rule 60(b) reason relied on, the facts supporting it, the date the judgment was entered, and why the motion is within a reasonable time and, for mistake, newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b), or fraud (reasons (1)-(3)), within one year.