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Louisiana Motion to Set Aside a Default Judgment

Louisiana uses an action of nullity, not a motion to vacate. Vices of form can be attacked at any time (art. 2002); fraud or ill practices within one year of discovery (art. 2004).

Introduction

A motion to set aside a default judgment asks the court to undo a judgment entered against you because you did not respond to the lawsuit in time, so the case can be reopened and decided on the merits. Louisiana is a civil-law state, so it does not use a Rule-60-style motion to vacate. Instead you attack the judgment with an action of nullity of judgment under La. Code Civ. Proc. arts. 2001 through 2006. The nullity of a final judgment may be demanded for vices of either form or of substance. Vices of form, under art. 2002, cover a judgment against a defendant not served with process as required by law who did not waive objection to jurisdiction, or against whom a valid default judgment has not been taken, or against an unrepresented incompetent person, or by a court without subject-matter jurisdiction. A vices-of-form action may be brought at any time. Vices of substance, under art. 2004, cover a final judgment obtained by fraud or ill practices, but that action must be brought within one year of your discovery of the fraud or ill practices. A short-window path is a motion for new trial under art. 1974, due within seven days, exclusive of legal holidays, after notice of judgment. DocDraft drafts a Louisiana 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 in time. In Louisiana you undo it not with a motion to vacate but with an action of nullity of judgment, which reopens the matter so it can be decided on the merits.

  2. 2

    The governing law is La. Code Civ. Proc. arts. 2001 through 2006. Article 2001 provides that the nullity of a final judgment may be demanded for vices of either form or of substance, as set out in the articles that follow.

  3. 3

    Vices of form are governed by art. 2002. A final judgment is annulled if rendered against a defendant not served with process as required by law who did not waive objection to jurisdiction, or against whom a valid default judgment has not been taken, or against an unrepresented incompetent person, or by a court without subject-matter jurisdiction.

  4. 4

    There is no fixed deadline for a vices-of-form action. Under art. 2002, except as otherwise provided in art. 2003, an action to annul on those grounds may be brought at any time. This is the primary route where a defective or unconfirmed default was entered.

  5. 5

    Vices of substance are governed by art. 2004: a final judgment obtained by fraud or ill practices may be annulled. That action must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices, not one year from entry of the judgment.

  6. 6

    A faster short-window option is a motion for new trial under art. 1974, which must be filed not later than seven days, exclusive of legal holidays, after the clerk mailed or delivered, or the sheriff served, the notice of judgment. Those seven days exclude legal holidays.

  7. 7

    An action of nullity is an ordinary proceeding, filed by petition, generally in the district court that rendered the judgment. Confirmation of the underlying default is governed separately by art. 1702. Check your court's rules for the filing method.

Key decisions before you file

Before you file a Motion to Set Aside a Default Judgment in Louisiana, 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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[NAME] JUDICIAL DISTRICT COURT PARISH OF [PARISH], STATE OF LOUISIANA

[PLAINTIFF IN NULLITY NAME], Plaintiff in Nullity,

 versus

[DEFENDANT IN NULLITY NAME], Defendant in Nullity.

Docket No.: [DOCKET NUMBER]

PETITION FOR NULLITY OF JUDGMENT [La. Code Civ. Proc. arts. 2001 through 2006]

TO THE HONORABLE COURT:

The petition of [PLAINTIFF IN NULLITY NAME], a party cast in the judgment described below, respectfully represents:

On [DATE OF JUDGMENT], a final default judgment was rendered against petitioner in the matter entitled [ORIGINAL CASE CAPTION], Docket No. [ORIGINAL DOCKET NUMBER], on the docket of this Honorable Court.

Petitioner brings this action of nullity under La. Code Civ. Proc. art. 2001, which provides that the nullity of a final judgment may be demanded for vices of either form or of substance.

[VICES OF FORM, art. 2002. Select and complete the ground that applies: petitioner was not served with process as required by law and did not waive objection to jurisdiction; or a valid default judgment was not taken against petitioner; or petitioner is an incompetent person who was not represented as required by law; or the court lacked jurisdiction over the subject matter of the suit. State the specific facts.]

[VICES OF SUBSTANCE, art. 2004. Complete only if applicable: the judgment was obtained by fraud or ill practices, described as follows. State the facts and the date petitioner discovered the fraud or ill practices.]

Timeliness. Petitioner's action to annul for vices of form under art. 2002 may be brought at any time, except as otherwise provided in art. 2003. [If proceeding under art. 2004: this action is brought within one year of petitioner's discovery of the fraud or ill practices on [DATE OF DISCOVERY].]

Petitioner has a defense to the underlying claim, namely: [state the defense, for example the debt was paid, the amount claimed is incorrect, or petitioner is not the proper party].

WHEREFORE, petitioner prays that this Honorable Court declare the default judgment rendered on [DATE OF JUDGMENT] to be null and of no effect, that the underlying matter be reopened and decided on the merits, and for all other relief that law, equity, and the nature of the case may permit. [Under art. 2004, the court may award reasonable attorney fees to the prevailing party in an action grounded on fraud or ill practices.]

Respectfully submitted,

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [Bar Roll Number, if attorney] [Address] [Telephone] Counsel for Plaintiff in Nullity / Plaintiff in Nullity, Pro Se

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing Petition for Nullity of Judgment was served on all parties, or their counsel of record, by [method of service] on [DATE], in accordance with Louisiana law.

[NAME OF PERSON SERVING]

[An action of nullity is an ordinary proceeding filed by petition in the district court. Confirm your court's local rules for citation, service, and any e-filing requirements before you file.]

Louisiana Requirements for Motion to Set Aside a Default Judgment

Identify the ground: vices of form or of substance

Under La. Code Civ. Proc. art. 2001, the nullity of a final judgment may be demanded for vices of either form or of substance. Vices of form are governed by art. 2002 and vices of substance by art. 2004. The ground you choose sets both the standard and the deadline.

State a vices-of-form ground under art. 2002

Article 2002 annuls a judgment rendered against a defendant not served with process as required by law who did not waive objection to jurisdiction, or against whom a valid default judgment has not been taken, or against an unrepresented incompetent person, or by a court without subject-matter jurisdiction.

Bring a vices-of-form action at any time

Under art. 2002, except as otherwise provided in art. 2003, an action to annul on vices-of-form grounds may be brought at any time. There is no fixed outer limit, though acting promptly is still prudent to protect your position.

For fraud or ill practices, file within one year of discovery

Under art. 2004, an action to annul a final judgment obtained by fraud or ill practices must be brought within one year of your discovery of the fraud or ill practices. That one-year period runs from discovery, not from entry of the judgment.

Consider the seven-day new-trial delay

Under art. 1974, a motion for new trial must be filed not later than seven days, exclusive of legal holidays, after the clerk mailed or delivered, or the sheriff served, the notice of judgment. This short-window path runs alongside the action of nullity.

Plead the underlying facts and any defense

State the specific facts supporting your chosen ground, such as the defective service or the fraud or ill practices, and, for a vices-of-substance action, the date you discovered it. Set out the defense you would raise if the matter is reopened.

File as an action of nullity by petition

An action of nullity under arts. 2001 through 2006 is an ordinary proceeding brought by petition, not a fill-in court form. Confirmation of the underlying default judgment is governed separately by art. 1702. Draft the petition with a proper caption and prayer for relief.

File in the district court and serve all parties

File the petition for nullity in the district court whose judgment you are attacking, generally in the parish where the judgment was rendered, serve all parties or their counsel of record, and complete a certificate of service. Check your court's local rules for the filing method.

Frequently Asked Questions

Louisiana is a civil-law state, so it does not use a motion to vacate. You attack a default judgment through an action of nullity of judgment under La. Code Civ. Proc. arts. 2001 through 2006. Article 2001 provides that the nullity of a final judgment may be demanded for vices of either form or of substance. It reopens the matter so the case can be decided on the merits.

Confirming a default judgment is the step that turns a defendant's failure to answer into an enforceable judgment, governed by art. 1702. Once that final judgment exists, you no longer stop the process; you annul the judgment through an action of nullity under arts. 2001 through 2006, choosing the vices-of-form path under art. 2002 or the vices-of-substance path under art. 2004.

It depends on the ground. A vices-of-form action under art. 2002 may be brought at any time, except as otherwise provided in art. 2003. A vices-of-substance action for fraud or ill practices under art. 2004 must be brought within one year of your discovery of the fraud or ill practices. A separate motion for new trial under art. 1974 is due within seven days, exclusive of legal holidays, after notice of judgment.

Under art. 2002, vices of form include a judgment rendered against a defendant not served with process as required by law who did not waive objection to jurisdiction, or against whom a valid default judgment has not been taken, or against an unrepresented incompetent person, or by a court without subject-matter jurisdiction. Under art. 2004, a vice of substance is a final judgment obtained by fraud or ill practices.

Often yes. Under art. 2002, a final judgment shall be annulled if it was rendered against a defendant who was not served with process as required by law and who did not waive objection to jurisdiction, or against whom a valid default judgment has not been taken. This vices-of-form action may be brought at any time, except as otherwise provided in art. 2003, so it is not limited to a short window.

Only for a vices-of-substance action. Under art. 2004, an action to annul a final judgment obtained by fraud or ill practices must be brought within one year of the plaintiff in the nullity action discovering the fraud or ill practices. That one-year period runs from discovery, not from entry of judgment. A vices-of-form action under art. 2002 has no such fixed limit and may be brought at any time.

An action of nullity is an ordinary proceeding brought by petition, generally in the district court whose judgment you are attacking. It is filed as a separate demand, not a quick fill-in form. Confirmation of the underlying default is governed separately by art. 1702. Check your court's local rules for the filing method and any e-filing requirements. Attorney review is available before you file.