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Virginia Motion to Set Aside a Default Judgment

In Virginia the trial court loses control of a judgment 21 days after entry under Rule 1:1. After that, relief comes only under Va. Code 8.01-428: fraud on the court, a void judgment, or accord and satisfaction.

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 within the deadline. Virginia handles this differently from most states. Under Rule 1:1 of the Rules of the Supreme Court of Virginia, a final judgment remains under the trial court's control for only twenty-one days after the date of entry, and no longer. Once those 21 calendar days pass, the court loses jurisdiction, and there is no general 'excusable neglect within a reasonable time' escape hatch. After day 21, relief exists only on the narrow, enumerated grounds in Virginia Code section 8.01-428(A): fraud on the court, a void judgment (one the court had no power to enter, most often because you were never properly served), or proof of an accord and satisfaction. A fraud-on-the-court motion must be made within two years of the judgment, while a motion to set aside a void judgment carries no fixed time limit. Section 8.01-428(C) adds a separate 60-day remedy if you were never notified the case was decided. Because the 21-day window is so short, act immediately. DocDraft drafts a Virginia 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 Virginia you ask the court to undo it so the case can be reopened and decided on the merits, but the path depends heavily on how many days have passed since the judgment was entered.

  2. 2

    Rule 1:1 of the Rules of the Supreme Court of Virginia sets a hard wall: a final judgment stays under the trial court's control for twenty-one days after the date of entry, and no longer. These are calendar days. After day 21 the court loses jurisdiction over the case.

  3. 3

    There is no general excusable-neglect relief after day 21. Virginia does not follow the model where you can reopen a judgment for mistake or neglect within a reasonable time. Once the 21-day window closes, relief exists only on the specific grounds in Virginia Code section 8.01-428.

  4. 4

    After finality, section 8.01-428(A) allows the court to set aside a default judgment on only three enumerated grounds: fraud on the court, a void judgment, or proof of an accord and satisfaction. Servicemember protections under 50 U.S.C. section 3911 can also apply.

  5. 5

    The timing depends on the ground. A motion on the ground of fraud on the court must be made within two years from the date of the judgment. A motion to set aside a void judgment has no fixed outer time limit, because a void judgment can be attacked at any time.

  6. 6

    A void judgment is one the court had no power to enter, most often because you were never properly served. Section 8.01-428(A)(ii) lets the court set aside a void judgment, and unlike the fraud ground it carries no two-year cap.

  7. 7

    Section 8.01-428(C) provides a separate remedy: if you had no notice the case was decided, you may seek relief within 60 days of learning of the judgment. File your motion in the circuit court or general district court where the judgment was entered.

Key decisions before you file

Before you file a Motion to Set Aside a Default Judgment in Virginia, 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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VIRGINIA: IN THE CIRCUIT COURT OF [CITY OR COUNTY]

[PLAINTIFF NAME], Plaintiff,

 v.

[DEFENDANT NAME], Defendant.

Case No.: [CASE NUMBER]

MOTION TO SET ASIDE DEFAULT JUDGMENT

(Va. Code Ann. Section 8.01-428)

TO THE HONORABLE JUDGE OF THIS COURT:

Defendant [DEFENDANT NAME], by counsel or pro se, respectfully moves this Court to set aside the default judgment entered against Defendant on [DATE OF JUDGMENT], and in support states as follows:

  1. On [DATE OF JUDGMENT] this Court entered a default judgment against Defendant after Defendant did not file a timely responsive pleading.

  2. Under Rule 1:1 of the Rules of the Supreme Court of Virginia, a final judgment remains under the control of the trial court for twenty-one days after the date of entry, and no longer. [If within 21 days: This motion is made within that 21-day window, and the Court retains authority to modify, vacate, or suspend the judgment.]

  3. [If after 21 days: The 21-day period under Rule 1:1 has passed, and Defendant seeks relief under Virginia Code Section 8.01-428(A) on the ground checked below.]

  4. Grounds under Virginia Code Section 8.01-428(A):

    [ ] Fraud on the court. [Describe the fraud. This motion is made within two years of the judgment as Section 8.01-428(A) requires.]

    [ ] Void judgment. The judgment is void because [for example, Defendant was never properly served and the Court lacked jurisdiction]. A void judgment may be set aside without any fixed time limit.

    [ ] Accord and satisfaction. [Describe the accord and satisfaction that resolved the claim.]

  5. [If applicable: Relief is also sought under Virginia Code Section 8.01-428(C) because Defendant was not notified that the case had been decided, and this motion is made within 60 days of learning of the judgment.]

  6. Reasonable notice of this motion has been given to the opposing party or the party's attorney of record, as Section 8.01-428(A) requires.

  7. If the case is reopened, Defendant intends to raise the following defense: [state the defense, for example the debt was paid, the amount is wrong, or Defendant is not the correct party].

WHEREFORE, Defendant respectfully requests that this Court set aside the default judgment entered on [DATE OF JUDGMENT], reinstate the case on the docket, permit Defendant to file a responsive pleading, and grant such other relief as the Court deems just.

Respectfully submitted,

[DEFENDANT NAME], Defendant [or Attorney for Defendant, VSB No. ______] [Address] [Telephone] [Email]

CERTIFICATE OF SERVICE

I certify that on [DATE] a true copy of the foregoing motion was served on [PLAINTIFF NAME or Plaintiff's counsel] at [ADDRESS] by [method of service], providing reasonable notice as required by Virginia Code Section 8.01-428.

[NAME OF PERSON SERVING]

[Confirm the correct court and the filing and notice procedures with the clerk of the circuit court or general district court that entered the judgment.]

Virginia Requirements for Motion to Set Aside a Default Judgment

Act within the 21-day Rule 1:1 window if you can

Under Rule 1:1 of the Rules of the Supreme Court of Virginia, a final judgment stays under the trial court's control for only twenty-one calendar days after entry, and no longer. If you are still inside that window the court has broad power to vacate the judgment, so move immediately.

After day 21, fit a Section 8.01-428 ground

Once the 21-day Rule 1:1 window closes the court loses general jurisdiction and there is no excusable-neglect relief. After that, your motion must fit an enumerated Virginia Code Section 8.01-428(A) ground: fraud on the court, a void judgment, or accord and satisfaction.

Meet the two-year limit for a fraud motion

If you rely on fraud on the court, Virginia Code Section 8.01-428(A) requires the motion to be made within two years from the date of the judgment. This time bar applies only to the fraud ground, not to a void judgment.

State fraud on the court, a void judgment, or accord and satisfaction

Identify which Section 8.01-428(A) ground applies and explain the facts. Fraud on the court, a void judgment, and accord and satisfaction are the enumerated statutory grounds; the statute does not provide a general mistake-or-neglect ground after finality.

Check whether the judgment is void for defective service

If you were never properly served, the court may have lacked jurisdiction and the judgment may be void. Section 8.01-428(A)(ii) lets the court set aside a void judgment, and unlike the fraud ground it carries no fixed time limit.

Consider the 60-day non-notification remedy

Virginia Code Section 8.01-428(C) provides a separate remedy when you were not notified that the case had been decided. If that applies, relief may be sought within 60 days of learning of the judgment, independent of the other grounds.

Give reasonable notice to the opposing party

Section 8.01-428(A) requires reasonable notice to the opposite party, their attorney of record, or other agent before the court acts. Use the Virginia court caption from the case record and complete a certificate of service showing that notice was given.

File in the court that entered the judgment

File the motion in the same court that entered the judgment, which is the circuit court or general district court where the case was decided. Confirm the filing and notice procedures with that court's clerk before you submit.

Frequently Asked Questions

It is a request asking the Virginia court that entered the judgment to undo a default judgment, which is the judgment entered against a defendant who did not respond to the lawsuit in time. Within 21 days of entry, Rule 1:1 gives the trial court broad control to modify or vacate the judgment. After day 21, the court can act only on the narrow grounds in Virginia Code section 8.01-428, such as fraud on the court or a void judgment.

A default is the procedural status when a defendant fails to file a timely responsive pleading; a default judgment is the later judgment that actually decides the case against you. Before final judgment, and within the 21-day Rule 1:1 window after it, the court has broad discretion to reopen the case. Once 21 days pass, the judgment is final and you can set it aside only on the enumerated section 8.01-428 grounds.

Under Rule 1:1 the trial court controls the judgment for only twenty-one calendar days after the date of entry, then loses jurisdiction. After that, a motion under section 8.01-428 on the ground of fraud on the court must be made within two years of the judgment. A motion to set aside a void judgment has no fixed outer limit, and section 8.01-428(C) allows relief within 60 days of learning of a judgment you were not notified about.

Once the 21-day Rule 1:1 window closes, Virginia Code section 8.01-428(A) allows the court to set aside a default judgment on three grounds: fraud on the court, a void judgment, or proof of an accord and satisfaction. Servicemember protections under 50 U.S.C. section 3911 may also apply. The statute does not provide a general excusable-neglect ground after finality, so the motion must fit one of these categories.

Often yes. If you were never properly served, the court may have lacked jurisdiction and the judgment may be void. Section 8.01-428(A)(ii) lets the court set aside a void judgment, and unlike the fraud-on-the-court ground it carries no two-year time limit, because a void judgment can be challenged at any time. You should be prepared to show why service was defective and why the court lacked power to enter the judgment.

After the 21-day Rule 1:1 window, no general excusable-neglect showing is available; the motion must instead fit a section 8.01-428 ground such as fraud on the court or a void judgment. Virginia Code section 8.01-428 does not on its face require you to attach a proposed responsive pleading to the motion. Confirm your court's local practice, because judges may expect to see the defense you would raise if the case is reopened.

You file the motion in the same court that entered the judgment, which is the circuit court or the general district court where the case was decided, using the case caption from that court's record. Reasonable notice must be given to the opposing party or their attorney of record before the court acts. Check the clerk's office for that court's local filing and notice procedures.