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New Hampshire Motion to Set Aside a Default Judgment

In New Hampshire you do not vacate a default under Rule 60. You move to strike it under Superior Court Rule 42(a) with a sworn affidavit of defense. File promptly.

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. New Hampshire handles this differently from most states. There is no Rule 60 and no motion to vacate. Instead the defaulted party moves to strike (strike off) the default under New Hampshire Superior Court Rule 42(a), or the identically worded Circuit Court District Division Rule 3.42 in the lower court. Under Rule 42(a) a default is stricken off only by agreement or by order of the court upon such terms as justice may require, and the court strikes it only upon motion and an affidavit of defense specifically setting forth the defense and the facts on which it is based. That sworn affidavit is New Hampshire's meritorious-defense requirement (proof you have a real defense, not just a wish to reopen). The rule lists no set grounds; the old accident, mistake, or misfortune standard was deleted by amendment effective in 2000, leaving the open-ended as justice may require test. The rule sets no fixed number of days, so file promptly and confirm your court's deadline. DocDraft drafts a New Hampshire 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 New Hampshire you undo it not by vacating it but by moving to strike (strike off) the default, which reopens the case so it can be decided on the merits.

  2. 2

    The controlling rule is New Hampshire Superior Court Rule 42(a). In the Circuit Court District Division the identically worded Rule 3.42 applies. Confirm which court entered your default and cite the matching rule.

  3. 3

    Rule 42(a) says a default is stricken off only by agreement or by order of the court upon such terms as justice may require. That open-ended standard replaced the old accident, mistake, or misfortune test, which was deleted by amendment effective in 2000.

  4. 4

    The court strikes the default only upon a motion and an affidavit of defense. The affidavit must specifically set forth the defense and the facts on which it is based, so a bare assertion that you have a defense is not enough.

  5. 5

    That affidavit of defense is New Hampshire's meritorious-defense requirement (proof you have a real defense that could change the outcome). A sworn statement of the defense and its supporting facts must accompany the motion to strike.

  6. 6

    Rule 42(a) fixes no numeric deadline to move to strike a default. Because the court weighs the terms as justice may require, delay counts against you, so file promptly and confirm your court's deadline.

  7. 7

    If a final decision has already entered, a separate track may apply: Superior Court Rule 12(e) requires a motion for reconsideration within 10 days of the clerk's written notice of the order. Confirm with your court which path fits your case.

Key decisions before you file

Before you file a Motion to Set Aside a Default Judgment in New Hampshire, 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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THE STATE OF NEW HAMPSHIRE [COUNTY], SS. SUPERIOR COURT

[PLAINTIFF NAME], Plaintiff,

 v.

[DEFENDANT NAME], Defendant.

Docket No.: [DOCKET NUMBER]

DEFENDANT'S MOTION TO STRIKE DEFAULT AND AFFIDAVIT OF DEFENSE

[N.H. Super. Ct. R. 42(a)]

NOW COMES the Defendant, [DEFENDANT NAME], and respectfully moves this Honorable Court to strike off the default entered in this matter under New Hampshire Superior Court Rule 42(a), and in support states as follows:

  1. A default was entered against the Defendant on [DATE OF DEFAULT] because [describe why the Defendant did not respond in time].

  2. Under Rule 42(a), a default shall be stricken off by order of the court upon such terms as justice may require. Justice requires striking the default here because [state the reasons the failure to respond should be excused and the case reopened].

  3. Rule 42(a) directs that the court strike the default only upon motion and affidavit of defense. The Defendant's affidavit of defense is set forth below and specifically states the defense and the facts on which it is based.

  4. The Defendant has acted promptly. The Defendant learned of the default on [DATE] and files this motion without unnecessary delay.

  5. [If applicable: The Defendant was never properly served with the action, and therefore did not have a fair opportunity to respond, which is a further reason justice requires striking the default.]

AFFIDAVIT OF DEFENSE

I, [DEFENDANT NAME], being duly sworn, depose and say:

a. I am the Defendant in this matter and have personal knowledge of the facts stated here.

b. My defense to the Plaintiff's claim is: [state the specific defense, for example the debt was paid, the amount claimed is wrong, or I am not the correct party].

c. The facts supporting that defense are: [state the specific facts on which the defense is based].

d. I did not respond in time because [state the facts of the failure to respond and when I learned of the default].

Signed under the pains and penalties of perjury this [DATE].

[DEFENDANT NAME]

WHEREFORE, the Defendant respectfully requests that this Court:

A. Strike off the default entered on [DATE OF DEFAULT];

B. Permit the Defendant to file a response and defend the case on the merits; and

C. Grant such other relief as justice may require.

Respectfully submitted,

[DEFENDANT NAME], Defendant [Address] [Telephone] [Email]

CERTIFICATE OF SERVICE

I certify that on [DATE] a copy of this Motion to Strike Default and Affidavit of Defense was served on the Plaintiff or the Plaintiff's counsel at the address of record by [method of service].

[DEFENDANT NAME]

[If the case is in the Circuit Court District Division, file under the identically worded Rule 3.42 and caption the pleading for that court. Confirm your court's filing and service requirements.]

New Hampshire Requirements for Motion to Set Aside a Default Judgment

File your motion to strike promptly

Superior Court Rule 42(a) sets no fixed number of days to move to strike a default. Because the court acts upon such terms as justice may require, delay weakens your showing. File as soon as you learn of the default and confirm your court's deadline.

Check whether a final decision has entered

If a final decision or order has already entered, a separate track may apply: Superior Court Rule 12(e) requires a motion for reconsideration within 10 days of the clerk's written notice of the order. Confirm with your court which path fits your case.

Move to strike the default, not vacate it

New Hampshire has no Rule 60 and no motion to vacate. Under Superior Court Rule 42(a) you ask the court to strike (strike off) the default. The court strikes it only by agreement or by order upon such terms as justice may require.

Show why justice requires reopening

Rule 42(a) lists no enumerated grounds. The old accident, mistake, or misfortune standard was deleted by amendment effective in 2000, leaving the open-ended as justice may require test. Explain why you did not respond in time and why justice supports reopening.

Prepare the affidavit of defense

The court strikes the default only upon a motion and an affidavit of defense specifically setting forth the defense and the facts on which it is based. This is New Hampshire's meritorious-defense requirement, so name the defense and the supporting facts, not just that a defense exists.

Address service if you were never served

If you were never properly served, you did not get a fair chance to respond. Rule 42(a) does not spell out a separate void-judgment path, so raise the defective service in your motion and affidavit. Attorney review is available to assess a service defect.

Use the correct court caption and rule

Cite Superior Court Rule 42(a) for a Superior Court case, or the identically worded Circuit Court District Division Rule 3.42 for that court. Use the case caption exactly as it appears in the court record, including the county and docket number.

File in the deciding court and serve the other party

File in the same court that entered the default, include the motion and the required affidavit of defense, serve the Plaintiff or the Plaintiff's counsel, and complete a certificate of service. Confirm your court's filing and service method before you file.

Frequently Asked Questions

In New Hampshire it is a motion to strike (strike off) the default, not a motion to vacate. Under Superior Court Rule 42(a) the court strikes a default only by agreement or by order upon such terms as justice may require, and only upon a motion and an affidavit of defense. Striking the default reopens the case so it can be decided on the merits rather than lost by not responding in time.

A default is the record that you did not respond on time; a default judgment is the later decision that resolves the case against you. In New Hampshire both are addressed through Rule 42(a), which lets the court strike the default off upon such terms as justice may require and upon a motion with an affidavit of defense. Acting before a final decision enters is generally simpler, so move to strike promptly.

Superior Court Rule 42(a) sets no fixed number of days to move to strike a default. Because the court strikes it only upon such terms as justice may require, delay weakens your showing, so file promptly. If a final decision has already entered, Superior Court Rule 12(e) requires a motion for reconsideration within 10 days of the clerk's written notice. Confirm your court's applicable deadline.

Rule 42(a) lists no enumerated grounds. The old accident, mistake, or misfortune and not through neglect standard was deleted by amendment effective in 2000, leaving the open-ended test that the court strikes the default upon such terms as justice may require. In practice you explain why you did not respond in time and why justice supports reopening, and you back that with the required affidavit of defense.

Improper service is a strong reason to ask the court to strike a default, because a defendant who was never properly served did not get a fair chance to respond. New Hampshire's Rule 42(a) does not spell out a separate void-judgment path in its text, so raise the defective service in your motion to strike and affidavit. A lack of proper service is a legal question, and attorney review is available to assess it.

Yes. Rule 42(a) says the court strikes the default only upon a motion and an affidavit of defense specifically setting forth the defense and the facts on which it is based. This is New Hampshire's meritorious-defense requirement. A general statement that you have a defense is not enough; the sworn affidavit must name the defense and the facts that support it, and it must accompany the motion.

File in the same court that entered the default. If the case is in the Superior Court, file under Superior Court Rule 42(a). If it is in the Circuit Court District Division, file under the identically worded Rule 3.42. Include the motion and the required affidavit of defense, use the case caption from the court record, and serve the other party. Check your court for its filing and service method.