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Nebraska Motion to Set Aside a Default Judgment

Set aside a Nebraska default judgment. During the court term the judge may vacate it as a matter of discretion; after the term, seven statutory grounds apply within six months.

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. A default judgment is the judgment a court enters when a defendant does not answer or appear. Nebraska handles this by statute rather than by a federal-style Rule 60 motion, and the path depends on timing. During the term of court at which the judgment was entered, the district court may vacate a default judgment as a matter of its inherent discretion, with no fixed day-count. After that term ends, Neb. Rev. Stat. 25-2001 narrows your options: the court may vacate only on one of seven enumerated grounds (such as a mistake or irregularity by the clerk, fraud by the party who won, newly discovered evidence, or unavoidable casualty or misfortune that prevented you from defending), and only on a motion filed within six months after entry of the judgment. Neb. Rev. Stat. 25-2002 requires that after-term challenge to be brought by a verified complaint that sets forth the judgment, the grounds, and your defense to the action, with a summons issued and served as in a new case. A separate equity power under 25-2001(2) is not capped by that six-month window. A judgment is void when the court lacked authority to enter it, most often because you were never properly served. DocDraft drafts a Nebraska 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 Nebraska you undo it by asking the district court to vacate the judgment, which reopens the case so it can be decided on the merits.

  2. 2

    Nebraska is a statutory set-aside state, not a Rule 60 state. The governing statutes are Neb. Rev. Stat. 25-2001 (grounds and power to vacate) and 25-2002 (the procedure for bringing the challenge).

  3. 3

    Timing controls which path applies. During the term of court at which the judgment was entered, the court may vacate a default judgment as a matter of its inherent discretion, with no fixed day-count.

  4. 4

    After the term ends, the court may vacate only on the seven grounds listed in 25-2001(4): clerk mistake or irregularity, fraud by the winning party, newly discovered evidence, erroneous proceedings against an infant or person of unsound mind, death of a party before judgment, unavoidable casualty or misfortune, and defective-notice warrant-of-attorney judgments.

  5. 5

    For an after-term challenge, the motion must be filed within six months after entry of the judgment or order. The six months runs from entry and is an outer limit, so act as soon as you can.

  6. 6

    Under 25-2002 the after-term challenge is brought by a verified complaint that sets forth the judgment, the grounds to vacate it, and, if you were the defendant, your defense to the action. A summons is issued and served as in commencing a new action. Setting out your defense is the meritorious-defense showing.

  7. 7

    A judgment can be void when the court lacked authority to enter it, most often for defective service. Section 25-2001(2) preserves a separate equity power to set aside a judgment that is not capped by the six-month after-term window. You file in the district court where the judgment was entered.

Key decisions before you file

Before you file a Motion to Set Aside a Default Judgment in Nebraska, 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 DISTRICT COURT OF [COUNTY] COUNTY, NEBRASKA

[PLAINTIFF NAME], Plaintiff,

 vs.

[DEFENDANT NAME], Defendant.

Case No.: [CASE NUMBER]

MOTION TO VACATE AND SET ASIDE DEFAULT JUDGMENT

[Neb. Rev. Stat. 25-2001; 25-2002]

COMES NOW Defendant [DEFENDANT NAME] and respectfully moves this Court, under Neb. Rev. Stat. 25-2001 and 25-2002, to vacate and set aside the default judgment entered against Defendant on [DATE OF JUDGMENT], and in support states:

  1. On [DATE OF JUDGMENT], the Court entered a default judgment against Defendant because Defendant did not answer or appear in this action.

  2. Timeliness. [If during the term: This motion is made during the term of court at which the judgment was entered, and the Court may vacate the judgment as a matter of its inherent discretion.] [If after the term: This motion is filed within six months after entry of the judgment, as Neb. Rev. Stat. 25-2001 requires for relief after the term of court.]

  3. Grounds. Relief is sought on the following ground under Neb. Rev. Stat. 25-2001(4): [select and describe: (a) mistake, neglect, omission, or irregularity of the clerk in obtaining the judgment; (b) fraud practiced by the successful party; (c) newly discovered material evidence that could not have been discovered earlier with reasonable diligence; (d) erroneous proceedings against an infant or person of unsound mind; (e) death of a party before judgment; (f) unavoidable casualty or misfortune preventing Defendant from defending; or (g) a judgment taken where Defendant was not summoned or otherwise legally notified].

  4. Defense to the action. As Neb. Rev. Stat. 25-2002 requires, Defendant sets forth the following defense to the action: [state the meritorious defense, for example the debt was paid, the amount claimed is wrong, or Defendant is not the correct party].

  5. [If applicable: The judgment is void because Defendant was never properly served and the Court lacked authority to enter it. The equity power preserved by Neb. Rev. Stat. 25-2001(2) is not limited by the six-month after-term period.]

VERIFICATION

I, [DEFENDANT NAME], being first duly sworn, state that I have read the foregoing motion, that I am the Defendant, and that the facts stated are true to the best of my knowledge and belief.

[DEFENDANT NAME]

Subscribed and sworn to before me on [DATE].

Notary Public

PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that the Court vacate and set aside the default judgment entered on [DATE], permit Defendant to defend the action on the merits, and grant such other relief as the Court deems just.

Dated: [DATE]

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

CERTIFICATE OF SERVICE

I certify that on [DATE] I served the foregoing motion on the Plaintiff by [method of service], and, for an after-term challenge under Neb. Rev. Stat. 25-2002, that a summons has been issued and served as in commencing a new action.

[NAME OF PERSON SERVING]

[Confirm your district court's filing, verification, and service requirements before filing.]

Nebraska Requirements for Motion to Set Aside a Default Judgment

Identify the term-of-court timing first

Timing controls your path. During the term of court at which the judgment was entered, the district court may vacate a default judgment as a matter of its inherent discretion, with no fixed day-count. After the term, the statutory grounds and the six-month limit apply.

File within six months for an after-term challenge

After the term ends, Neb. Rev. Stat. 25-2001 requires a motion on the seven statutory grounds to be filed within six months after entry of the judgment or order. The six months runs from entry and is an outer limit, so act as soon as you can.

Match your facts to one of the seven statutory grounds

For an after-term challenge, relief is available only on a ground in Neb. Rev. Stat. 25-2001(4): clerk mistake or irregularity, fraud by the winning party, newly discovered evidence, erroneous proceedings against an infant or person of unsound mind, death of a party, unavoidable casualty or misfortune, or a defective-notice warrant-of-attorney judgment.

Set forth your defense to the action

Under Neb. Rev. Stat. 25-2002, if you were the defendant you must set forth your defense to the action in the challenge. Stating that defense is the meritorious-defense showing, so describe the real defense you would raise if the case is reopened.

Check whether the judgment is void for lack of service

A judgment can be void when the court lacked authority to enter it, most often for defective service. Section 25-2001(4)(g) covers judgments taken where the defendant was not summoned or legally notified, and 25-2001(2) preserves a separate equity power that is not capped by the six-month window.

Bring the after-term challenge by a verified complaint

Neb. Rev. Stat. 25-2002 requires the after-term challenge to be brought by a complaint, verified by affidavit, that sets forth the judgment, the grounds to vacate it, and your defense to the action. Prepare the verification and supporting facts to accompany the filing.

Issue and serve a summons as in a new action

For an after-term challenge under Neb. Rev. Stat. 25-2002, a summons is issued and served as in commencing a new action. Confirm your district court's summons, service, and any local requirements before you file.

File in the district court where the judgment was entered

File in the district court where the default judgment was entered, in the same case. During the term the court may vacate its own judgment on motion at its discretion; after the term, file the verified 25-2002 complaint in that court. Confirm the court's filing method before you file.

Frequently Asked Questions

It is a request asking a Nebraska district court to undo a default judgment, which is the judgment entered against a defendant who did not respond to the lawsuit in time. Setting it aside reopens the case so you can defend it. Nebraska handles this by statute under Neb. Rev. Stat. 25-2001 and 25-2002, not by a federal-style Rule 60 motion, and the available path depends on whether the term of court has ended.

A default is the record that you did not respond on time; a default judgment is the later judgment that actually decides the case against you. Acting before judgment is generally easier. Once a default judgment is entered, the path depends on timing: during the term the court may vacate it at its discretion, but after the term you must use one of the seven grounds in 25-2001 and file within six months.

It depends on the term of court. During the term at which the judgment was entered, the court may vacate a default judgment as a matter of its inherent discretion, with no fixed day-count. After the term ends, a motion on the seven statutory grounds in Neb. Rev. Stat. 25-2001 must be filed within six months after entry of the judgment. The separate equity power under 25-2001(2) is not capped by that six-month window.

Section 25-2001(4) lists seven grounds: mistake, neglect, omission, or irregularity by the clerk in obtaining the judgment; fraud by the party who won; newly discovered material evidence that could not have been found earlier with reasonable diligence; erroneous proceedings against an infant or person of unsound mind not shown in the record; death of a party before judgment; unavoidable casualty or misfortune that prevented you from defending; and certain defective-notice warrant-of-attorney judgments.

Possibly. A judgment can be void when the court lacked authority to enter it, most often because you were never properly served. Section 25-2001(4)(g) addresses judgments taken where the defendant was not summoned or otherwise legally notified, and 25-2001(2) preserves a separate equity power to set aside a judgment that is not capped by the six-month after-term window. Whether a service-defect challenge can be brought later is a fact-specific question; confirm it with your court.

Yes, for an after-term challenge. Under Neb. Rev. Stat. 25-2002 the proceeding is brought by a complaint that sets forth the judgment, the grounds to vacate it, and, if you were the defendant, your defense to the action. Setting out that defense is the meritorious-defense showing. The complaint is verified, and a summons issues and is served as in commencing a new action.

You file in the district court where the judgment was entered, in the same case. During the term the court may vacate its own default judgment on motion at its discretion. After the term, the 25-2002 challenge is brought by a verified complaint in that court, with a summons issued and served as in a new action. Confirm your court's filing and service requirements before you file.