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Texas Motion to Set Aside a Default Judgment

Set aside a Texas default judgment with a motion for new trial under the Craddock test. File within 30 days of the judgment being signed while the court keeps plenary power.

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 you can defend the case on the merits. A default judgment is the judgment a court enters when a defendant fails to respond by the deadline. In Texas the vehicle for undoing it, while the court still has power to act, is a motion for new trial under Texas Rule of Civil Procedure 320, which lets the court grant a new trial and set the judgment aside for good cause. The governing standard is the Craddock three-element test: you must show the failure to answer was not intentional or the result of conscious indifference but was due to a mistake or accident, that your motion sets up a meritorious defense (a real defense you could win on if the case reopens), and that granting a new trial would not delay or otherwise injure the plaintiff. Timing is strict. Under Rule 329b the motion must be filed within 30 calendar days after the judgment is signed, the same window in which the trial court keeps plenary power to vacate the judgment. After that power expires, the only path is an equitable bill of review, so act fast. DocDraft drafts a Texas 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 a court enters when a defendant does not answer the lawsuit in time. In Texas you undo it by moving to set the judgment aside, which reopens the case so it can be decided on the merits.

  2. 2

    The vehicle is a motion for new trial under Texas Rule of Civil Procedure 320, which lets the court grant a new trial and set the judgment aside for good cause while it still has power over the case.

  3. 3

    The deadline is short. Under Rule 329b(a) the motion for new trial must be filed within 30 calendar days after the judgment is signed. The clock runs from the signing date, not from when you learned of the judgment.

  4. 4

    The court's plenary power to vacate or modify the judgment also runs 30 days from signing under Rule 329b(d). A timely motion for new trial extends that power until 30 days after the motion is overruled, up to a maximum of 105 days.

  5. 5

    The standard is the Craddock three-element test: the failure to answer was not intentional or due to conscious indifference but was a mistake or accident, the motion sets up a meritorious defense, and a new trial would not delay or injure the plaintiff.

  6. 6

    You must set up a meritorious defense in the motion. Conscious indifference means you knew you were sued but did not care; showing the failure was an accident or mistake, plus a real defense, is the core of the Craddock showing.

  7. 7

    After the court's plenary power expires, the judgment can only be set aside by an equitable bill of review for sufficient cause, filed within the time allowed by law. A party who was never served or given notice of the default has a relaxed showing.

Key decisions before you file

Before you file a Motion to Set Aside a Default Judgment in Texas, 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 [COURT NAME, e.g. DISTRICT / COUNTY] COURT [JUDICIAL DISTRICT / COURT NUMBER] [COUNTY] COUNTY, TEXAS

[PLAINTIFF NAME], Plaintiff,

 v.

[DEFENDANT NAME], Defendant.

Cause No.: [CAUSE NUMBER]

DEFENDANT'S MOTION FOR NEW TRIAL TO SET ASIDE DEFAULT JUDGMENT

[Tex. R. Civ. P. 320; Tex. R. Civ. P. 329b]

TO THE HONORABLE JUDGE OF SAID COURT:

Defendant [DEFENDANT NAME] files this Motion for New Trial to set aside the default judgment signed on [DATE JUDGMENT SIGNED], and respectfully shows the Court as follows:

I. INTRODUCTION

  1. On [DATE JUDGMENT SIGNED], the Court signed a default judgment against Defendant after Defendant did not file an answer. Defendant now moves to set that judgment aside and for a new trial under Texas Rule of Civil Procedure 320.

II. TIMELINESS

  1. This motion is filed within 30 days after the judgment was signed, as required by Texas Rule of Civil Procedure 329b(a). The Court retains plenary power to grant this motion under Rule 329b(d).

III. GROUNDS UNDER THE CRADDOCK TEST

  1. First element. Defendant's failure to answer was not intentional or the result of conscious indifference, but was due to a mistake or accident: [describe what happened, for example the citation was never received, was misdelivered, or a calendaring error caused the deadline to be missed].

  2. Second element. This motion sets up a meritorious defense. If the case is reopened, Defendant would show: [state the defense, for example the debt was paid, the amount claimed is wrong, Defendant is not the correct party, or the claim is barred].

  3. Third element. Granting a new trial would not result in delay or otherwise injure the Plaintiff. Defendant is ready to proceed and offers to [reimburse reasonable costs / proceed on the current setting as applicable].

IV. RELIEF REQUESTED

  1. For these reasons, Defendant respectfully requests that the Court set aside the default judgment signed on [DATE], grant a new trial, permit Defendant to answer and defend on the merits, and grant all other relief to which Defendant is justly entitled.

Respectfully submitted,

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [Bar No., if attorney] [Address] [Telephone / Email] Attorney for Defendant / Defendant Pro Se

VERIFICATION

Before me, the undersigned authority, appeared [DECLARANT NAME], who stated under oath that the facts in this motion concerning the failure to answer and the meritorious defense are within personal knowledge and are true and correct.

[DECLARANT NAME]

CERTIFICATE OF SERVICE

I certify that on [DATE] a true copy of this motion was served on all counsel of record and on any pro se parties in accordance with the Texas Rules of Civil Procedure by [method of service].

[NAME OF PERSON SERVING]

[Check your court's local rules for filing method, formatting, and any electronic-filing requirement. This motion must be filed before the trial court's plenary power expires.]

Texas Requirements for Motion to Set Aside a Default Judgment

File within 30 days of the signed judgment

Under Texas Rule of Civil Procedure 329b(a) the motion for new trial must be filed within 30 calendar days after the judgment is signed. The clock runs from the signing date, so file as soon as you learn of the judgment.

Understand the plenary power window

The trial court's plenary power to vacate the judgment runs 30 days from signing under Rule 329b(d). A timely motion for new trial extends that power until 30 days after the motion is overruled, up to a 105-day maximum. After plenary power expires, relief is only by bill of review.

Move for new trial under Rule 320

Set the judgment aside by a motion for new trial under Texas Rule of Civil Procedure 320, which lets the court grant a new trial and set the judgment aside for good cause while it still has power over the case.

Show the failure to answer was a mistake or accident

The first Craddock element requires you to show the failure to answer was not intentional or the result of conscious indifference but was due to a mistake or accident. Conscious indifference means you knew you were sued but did not care.

Set up a meritorious defense

The second Craddock element requires the motion to set up a meritorious defense, the real defense you would raise if the case reopens, such as the debt was paid, the amount is wrong, or you are not the correct party.

Show no delay or injury to the plaintiff

The third Craddock element requires you to show that granting a new trial would not result in delay or otherwise injure the plaintiff. Offering to proceed promptly and to reimburse reasonable costs can support this element.

Verify the motion and state the facts

Support the motion with sworn facts describing why the answer was missed and the defense you would raise. Use the same court name and cause number as the default judgment, exactly as they appear in the record.

File in the same court and complete a certificate of service

File the motion in the same Texas trial court that signed the judgment, under the same cause number, and serve all parties with a certificate of service. Check your court's local rules for filing method, and note that many Texas courts require electronic filing for represented parties.

Frequently Asked Questions

It is a request asking a Texas trial court to undo a default judgment, which is the judgment entered against a defendant who did not answer the lawsuit in time. In Texas the vehicle is a motion for new trial under Rule of Civil Procedure 320, which lets the court set the judgment aside for good cause. To succeed you must meet the Craddock three-element test and file while the court still has power over the case.

A default is the defendant's failure to answer the lawsuit on time; a default judgment is the judgment the court then signs deciding the case against that defendant. Once a default judgment is signed, you undo it with a motion for new trial under Rule 320, filed within 30 days of signing, and you must satisfy the Craddock three-element test. After the court's plenary power expires the only path is a bill of review.

Under Rule of Civil Procedure 329b(a) a motion for new trial must be filed within 30 calendar days after the judgment is signed. The trial court's plenary power to vacate the judgment also runs 30 days from signing under Rule 329b(d). A timely motion for new trial extends that power until 30 days after the motion is overruled, capped at 105 days. Miss the window and relief is by bill of review.

It is the standard a Texas court applies to a motion for new trial after a default judgment. The movant must show the failure to answer was not intentional or the result of conscious indifference but was due to a mistake or accident, that the motion sets up a meritorious defense, and that granting a new trial would not cause delay or otherwise injure the plaintiff. When all three are established the court should grant a new trial.

Often yes. If you were never properly served, you can raise that lack of service in a timely motion for new trial. After the court's plenary power expires the vehicle is an equitable bill of review under Rule 329b(f), filed within the time allowed by law. A party who claims no service or no notice of the default is relieved of proving some of the elements normally required for a bill of review.

Texas rules do not by their terms require you to attach a proposed answer to the motion for new trial. What Craddock requires is that the motion set up a meritorious defense and negate an intentional or consciously indifferent failure to answer. Filing your answer along with the motion can help show you are ready to defend, so confirm your court's local practice on what to file with the motion.

You file the motion for new trial in the same Texas trial court that signed the default judgment, under the same cause number, before that court's plenary power expires. It must be filed within 30 days of the signing date. Check your court's local rules for filing method and format, and note that many Texas courts require electronic filing for represented parties.