Louisiana Motion to Set Aside a Default Judgment

Introduction

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.

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.