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Georgia Motion to Set Aside a Default Judgment

In Georgia you can open a default as a matter of right within 15 days by paying costs (O.C.G.A. 9-11-55), or move to set aside an entered judgment under 9-11-60(d).

Introduction

A motion to set aside a default judgment asks the court to undo a judgment entered against you because you did not answer the lawsuit in time, so the case can be reopened and decided on the merits. A default judgment is the judgment a court enters when a defendant does not respond by the deadline. Georgia splits post-default relief into two statutory tracks. Under O.C.G.A. 9-11-55(a) you can open the default as a matter of right within 15 days of the day of default by filing your defenses and paying costs, which is a window most states do not offer. After those 15 days, and at any time before final judgment, the court may still open the default in its discretion for providential cause preventing the filing of pleadings, for excusable neglect, or where the judge finds a proper case has been made, under 9-11-55(b). That showing must be made under oath, must set up a meritorious defense (a real defense that could change the outcome), must offer to plead instanter, and must announce ready for trial. Once a default judgment is actually entered, the separate track is a motion to set aside under 9-11-60(d) for lack of jurisdiction, fraud, accident, or mistake, or a nonamendable defect on the face of the record. Deadlines here are strict, so confirm your court's rule before you rely on any date. DocDraft drafts a Georgia motion to set aside a default judgment from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    A default judgment is the judgment entered when a defendant does not respond to a lawsuit in time. In Georgia you can undo the default before judgment under O.C.G.A. 9-11-55, or set aside an entered judgment under O.C.G.A. 9-11-60, so the case can be decided on the merits.

  2. 2

    Georgia gives you an as-of-right window. Under O.C.G.A. 9-11-55(a) the default may be opened as a matter of right within 15 days of the day of default by filing your defenses and paying costs. Treat this as a short window and confirm your court's rule for the exact deadline before you rely on it.

  3. 3

    After the as-of-right window, the court may still open the default in its discretion at any time before final judgment. Under O.C.G.A. 9-11-55(b) the grounds are providential cause preventing the filing of pleadings, excusable neglect, or a finding that a proper case has been made, on payment of costs.

  4. 4

    The 9-11-55(b) showing has strict statutory elements. It must be made under oath, must set up a meritorious defense, must offer to plead instanter (present your responsive pleading at once), and must announce ready to proceed with trial.

  5. 5

    Once a default judgment is entered, the separate path is a motion to set aside under O.C.G.A. 9-11-60(d): lack of jurisdiction over the person or subject matter, fraud, accident, or mistake or the acts of the adverse party unmixed with the movant's own negligence, or a nonamendable defect appearing on the face of the record or pleadings.

  6. 6

    If the judgment is void because the court lacked jurisdiction over you, most often because you were never properly served, it can be attacked at any time under O.C.G.A. 9-11-60(f). Other set-aside motions carry a three-year limit from entry of the judgment.

  7. 7

    You file in the court where the case is pending, generally the Superior Court or State Court of the county. A meritorious defense is a real defense that could change the result, which is why 9-11-55(b) requires you to set it up under oath.

Key decisions before you file

Before you file a Motion to Set Aside a Default Judgment in Georgia, a few decisions shape the document: which option to choose and what each one means. The Motion to Set Aside a Default Judgment guide walks through them.

Open the Motion to Set Aside a Default Judgment guide

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IN THE SUPERIOR COURT OF [COUNTY] COUNTY STATE OF GEORGIA

[PLAINTIFF NAME], Plaintiff,

 v.

[DEFENDANT NAME], Defendant.

Civil Action File No.: [CASE NUMBER]

MOTION TO OPEN DEFAULT AND TO SET ASIDE DEFAULT JUDGMENT; AFFIDAVIT IN SUPPORT

[O.C.G.A. 9-11-55; O.C.G.A. 9-11-60(d)]

COMES NOW Defendant [DEFENDANT NAME] and moves this Court to open the default and set aside the default judgment entered in this action, and in support shows the following:

  1. This action was filed and a default was entered because Defendant did not file a timely answer. Judgment was entered on [DATE OF JUDGMENT].

  2. Grounds to open the default. Under O.C.G.A. 9-11-55(b), and on payment of costs, Defendant asks the Court to open the default because [state providential cause preventing the filing of pleadings, excusable neglect, or the facts showing a proper case has been made].

  3. Timeliness. [If within 15 days of the day of default: Defendant moves within the time to open the default as a matter of right under O.C.G.A. 9-11-55(a) and tenders payment of costs.] [If later: Defendant moves before final judgment and asks the Court to exercise its discretion under O.C.G.A. 9-11-55(b).] Defendant will confirm the applicable deadline under the Court's rule.

  4. Sworn showing and meritorious defense. As required by O.C.G.A. 9-11-55(b), this showing is made under oath in the attached affidavit. Defendant sets up the following meritorious defense: [state the defense, for example the debt was paid, the amount claimed is wrong, or Defendant is not the correct party]. Defendant offers to plead instanter and submits the proposed responsive pleading with this motion, and announces ready to proceed with trial.

  5. Grounds to set aside the judgment. To the extent a judgment has been entered, Defendant moves to set it aside under O.C.G.A. 9-11-60(d) on the grounds of [lack of jurisdiction over the person or subject matter; fraud, accident, or mistake or the acts of the adverse party unmixed with Defendant's own negligence; or a nonamendable defect appearing on the face of the record or pleadings].

  6. Void judgment. [If applicable: The judgment is void because the Court lacked jurisdiction over Defendant, who was never properly served, and it may be attacked at any time under O.C.G.A. 9-11-60(f).]

AFFIDAVIT

Personally appeared [DECLARANT NAME], who, being duly sworn, states that the facts set forth in this motion are true and correct, that Defendant has a meritorious defense, and that Defendant offers to plead instanter and is ready to proceed with trial.

[DECLARANT NAME]

Sworn to and subscribed before me this [DATE].

Notary Public

PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully prays that the Court open the default under O.C.G.A. 9-11-55, set aside the default judgment under O.C.G.A. 9-11-60(d), permit Defendant to file the attached responsive pleading, and grant such other relief as is just.

This [DATE].

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [Address] [Telephone] Attorney for Defendant / Defendant Pro Se

CERTIFICATE OF SERVICE

I certify that I have served a copy of the foregoing motion, affidavit, and proposed responsive pleading on all parties or their counsel of record by [method of service] on [DATE], in accordance with Georgia law.

[NAME OF PERSON SERVING]

[Confirm your court's local rules for filing method, e-filing, and any additional formatting requirements.]

Georgia Requirements for Motion to Set Aside a Default Judgment

Open the default within the 15-day as-of-right window

Under O.C.G.A. 9-11-55(a) the default may be opened as a matter of right within 15 days of the day of default by filing your defenses and paying costs. Treat this as a short window and confirm your court's rule for the exact deadline before you rely on it.

After 15 days, move to open before final judgment

After the as-of-right window closes, O.C.G.A. 9-11-55(b) lets the court open the default in its discretion at any time before final judgment, on payment of costs. Move as soon as you can, because once final judgment is entered you must instead proceed under 9-11-60.

State a 9-11-55(b) ground to open the default

Identify which discretionary ground applies under O.C.G.A. 9-11-55(b): providential cause preventing the filing of pleadings, excusable neglect, or facts showing a proper case has been made. Explain the circumstances that caused the default.

Make the showing under oath with a meritorious defense

O.C.G.A. 9-11-55(b) requires the showing to be made under oath, to set up a meritorious defense, to offer to plead instanter, and to announce ready to proceed with trial. A meritorious defense is a real defense that could change the outcome.

Use 9-11-60(d) to set aside an entered judgment

Once a default judgment is entered, move to set it aside under O.C.G.A. 9-11-60(d) on the grounds of lack of jurisdiction, fraud, accident, or mistake or the adverse party's acts unmixed with your own negligence, or a nonamendable defect on the face of the record.

Check whether the judgment is void for lack of jurisdiction

If you were never properly served, the court may have lacked jurisdiction and the judgment may be void. Under O.C.G.A. 9-11-60(f) a judgment void for lack of jurisdiction may be attacked at any time, unlike other set-aside motions that carry a three-year limit from entry.

Attach the proposed pleading and pay costs

For a 9-11-55(b) motion, offer to plead instanter by submitting your proposed responsive pleading with the motion, and tender payment of costs. Include the case caption exactly as it appears in the court record and a sworn affidavit supporting your grounds.

File in the county court and serve all parties

File in the court where the case is pending, generally the Superior Court or State Court of the county named in the caption, serve all parties or their counsel, and file a certificate of service. Check your court's local rules for filing method and any e-filing requirements.

Frequently Asked Questions

It is a request asking a Georgia court to undo a judgment entered against a defendant who did not respond to the lawsuit in time, so the case can be reopened on the merits. Before final judgment, you use O.C.G.A. 9-11-55 to open the default. Once a judgment is entered, you use O.C.G.A. 9-11-60(d), which lists lack of jurisdiction, fraud, accident, or mistake, or a nonamendable defect on the face of the record.

In Georgia the two are governed by different statutes. Opening a default before final judgment is done under O.C.G.A. 9-11-55: within 15 days you can open it as a matter of right by paying costs, and after that the court may open it in its discretion for providential cause, excusable neglect, or a proper case. Setting aside a judgment that has already been entered is done under O.C.G.A. 9-11-60(d), on grounds like lack of jurisdiction or fraud.

Under O.C.G.A. 9-11-55(a) you can open the default as a matter of right within 15 days of the day of default by paying costs, and after that the court may open it in its discretion at any time before final judgment. A motion to set aside an entered judgment under 9-11-60 generally must be brought within three years of entry, with no time limit if the judgment is void for lack of jurisdiction. Deadlines are strict, so confirm your court's rule.

Under O.C.G.A. 9-11-55(b), after the 15-day as-of-right window, the court may open a default in its discretion, on payment of costs, for providential cause preventing the filing of required pleadings, for excusable neglect, or where the judge finds from all the facts that a proper case has been made. The showing must be made under oath, set up a meritorious defense, offer to plead instanter, and announce ready to proceed with trial.

Often yes. If you were never properly served, the court may have lacked jurisdiction over you and the judgment may be void. Under O.C.G.A. 9-11-60(f) a judgment void for lack of jurisdiction over the person or subject matter may be attacked at any time, and lack of jurisdiction is an enumerated set-aside ground under 9-11-60(d)(1). This void path is not limited by the three-year period that applies to other set-aside motions.

Yes, to open a default in the court's discretion under O.C.G.A. 9-11-55(b). The statute requires the showing to be made under oath, to set up a meritorious defense, to offer to plead instanter, and to announce ready to proceed with the trial. A meritorious defense is a real defense that could change the outcome. A motion to set aside an entered judgment under 9-11-60(d) does not by its terms require a meritorious defense.

You file it in the court where the case is pending, generally the Superior Court or State Court of the county named in the case caption. Include the caption exactly as it appears in the court record, along with your supporting affidavit and, for a 9-11-55(b) motion, your proposed responsive pleading. Check your court's local rules for filing method and any e-filing requirements.