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West Virginia Motion to Set Aside a Default Judgment

Set aside a West Virginia default judgment under Rule 60(b): file within a reasonable time, and no more than one year for excusable neglect. Void judgments have no one-year cap.

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 you can reopen the case and defend it on the merits. West Virginia handles this in two steps. Under Rule 55(c) of the West Virginia Rules of Civil Procedure the court may set aside an entry of default (the clerk's record that you did not answer) for good cause, but it expressly routes a final default judgment into Rule 60(b). That means once a judgment has actually been entered, you undo it only on a Rule 60(b) ground: Rule 60(b)(1) covers mistake, inadvertence, surprise, unavoidable cause, or excusable neglect, and Rule 60(b)(4) covers a judgment that is void (a judgment with no legal effect, most often because you were never properly served). The timing follows Rule 60(c)(1): the motion must be made within a reasonable time, and for the excusable-neglect ground no more than one year after the judgment was entered. A void judgment under Rule 60(b)(4) is limited only by the reasonable-time requirement, with no one-year cap. West Virginia courts weigh good cause under the Parsons v. Consolidated Gas Supply Corp. factors, so the facts you show matter. DocDraft drafts a West 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 West Virginia you undo it with a motion to set aside, which reopens the case so it can be decided on the merits rather than by default.

  2. 2

    West Virginia splits the analysis. Under Rule 55(c) the court sets aside a mere entry of default for good cause, but a final default judgment is routed into Rule 60(b), so the judgment is undone only on a Rule 60(b) ground.

  3. 3

    The main ground is Rule 60(b)(1): mistake, inadvertence, surprise, unavoidable cause, or excusable neglect. If you were never properly served, Rule 60(b)(4) lets the court set aside a judgment that is void.

  4. 4

    The deadline follows Rule 60(c)(1). The motion must be made within a reasonable time, and for the excusable-neglect ground no more than one year after entry of the judgment. This is calendar time, so file as soon as you can.

  5. 5

    A void judgment is treated differently. Under Rule 60(b)(4) a judgment attacked as void is limited only by the reasonable-time requirement, with no fixed one-year outer bar like the excusable-neglect ground carries.

  6. 6

    West Virginia courts weigh good cause using the Parsons factors: the prejudice to the plaintiff from the delay, whether there are material issues of fact and meritorious defenses, the significance of the interests at stake, and the defaulting party's intransigence, over a threshold showing of some excusable or unavoidable cause for the delay.

  7. 7

    You file the motion in the Circuit Court where the case is pending. Rule 4(d) also lets a default judgment be set aside where service was signed for or refused by an unauthorized person, so confirm your court's local filing procedure.

Key decisions before you file

Before you file a Motion to Set Aside a Default Judgment in West 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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IN THE CIRCUIT COURT OF [COUNTY] COUNTY, WEST VIRGINIA

[PLAINTIFF NAME], Plaintiff,

 v.

[DEFENDANT NAME], Defendant.

Civil Action No.: [CASE NUMBER]

MOTION TO SET ASIDE DEFAULT JUDGMENT

[W. Va. R. Civ. P. 55(c) and 60(b)]

TO THE HONORABLE COURT:

Defendant [DEFENDANT NAME] respectfully moves this Court to set aside the default judgment entered against Defendant on [DATE OF JUDGMENT] and to permit Defendant to defend this action on the merits. In support, Defendant states:

  1. On [DATE], the Court entered a default judgment against Defendant for failure to respond to the Complaint within the time allowed.

  2. Under Rule 55(c) of the West Virginia Rules of Civil Procedure, the Court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b).

  3. Grounds. Relief is sought under Rule 60(b)(1) because the failure to respond was the result of [describe the mistake, inadvertence, surprise, unavoidable cause, or excusable neglect]. [If applicable: In the alternative, the judgment is void under Rule 60(b)(4) because Defendant was never properly served and the Court lacked jurisdiction, and under Rule 4(d) service was signed for or refused by an unauthorized person.]

  4. Good cause. Under Parsons v. Consolidated Gas Supply Corp., setting aside the judgment is warranted because: (a) the Plaintiff will suffer little or no prejudice from the delay; (b) there are material issues of fact and a meritorious defense, namely [state the defense, for example the debt was paid, the amount is wrong, or Defendant is not the correct party]; (c) the interests at stake are significant to Defendant; and (d) Defendant has not been intransigent and acted promptly on learning of the judgment. Some excusable or unavoidable cause explains the delay, as set out above.

  5. Timeliness. This motion is made within a reasonable time as required by Rule 60(c)(1), and, as to the Rule 60(b)(1) ground, no more than one year after entry of the judgment.

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

Dated: [DATE]

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [Address] [Telephone] Counsel for Defendant / Defendant, self-represented

VERIFICATION / AFFIDAVIT

I, [DECLARANT NAME], state under penalty of perjury that the facts set forth above regarding the mistake, inadvertence, surprise, unavoidable cause, or excusable neglect, and the date I learned of the judgment, are true and correct.

[DECLARANT NAME]

CERTIFICATE OF SERVICE

I certify that on [DATE] I served a true copy of the foregoing Motion on all parties of record by [method of service], in accordance with the West Virginia Rules of Civil Procedure.

[NAME OF PERSON SERVING]

[Confirm your Circuit Court's local rules for formatting, filing method, and any hearing requirements before you file.]

West Virginia Requirements for Motion to Set Aside a Default Judgment

File within a reasonable time, capped at one year for excusable neglect

Under Rule 60(c)(1) the motion must be made within a reasonable time, and for the Rule 60(b)(1) excusable-neglect ground no more than one year after entry of the judgment. The one-year cap is an outer limit, not a grace period, so file as soon as you can.

Confirm the deadline runs from entry of the judgment

The reasonable-time and one-year limits under Rule 60(c)(1) run from the entry of the judgment or order. Identify the entry date on the court record and count the calendar time from that date when you assess whether you are still within the window.

State the ground under Rule 60(b)(1)

Identify the Rule 60(b)(1) ground that applies (mistake, inadvertence, surprise, unavoidable cause, or excusable neglect) and explain the facts. Rule 55(c) routes a final default judgment into Rule 60(b), so the judgment is undone only on a Rule 60(b) ground.

Address the Parsons good-cause factors

West Virginia courts weigh good cause under Parsons v. Consolidated Gas Supply Corp.: the prejudice to the plaintiff from the delay, the presence of material issues of fact and meritorious defenses, the significance of the interests at stake, and the defaulting party's intransigence, over a threshold showing of some excusable or unavoidable cause.

Check whether the judgment is void under Rule 60(b)(4)

If you were never properly served, the judgment may be void. Rule 60(b)(4) lets the court set aside a void judgment and is limited only by the reasonable-time requirement, not the one-year cap. Rule 4(d) also allows relief where service was signed for or refused by an unauthorized person.

Show a meritorious defense

The presence of material issues of fact and meritorious defenses is one of the Parsons factors, so state the real defense you would raise if the case is reopened. Whether your Circuit Court requires a proposed answer to accompany the motion is a matter of local practice, so confirm your court's rules.

Support the motion with an affidavit or verification

Support the motion with a sworn affidavit or verification stating the facts of the mistake, inadvertence, surprise, unavoidable cause, or excusable neglect, and the date you learned of the judgment. Use the case caption exactly as it appears in the court record.

File in the Circuit Court and complete a certificate of service

File the motion in the Circuit Court where the case is pending, serve all parties of record, and file a certificate of service. West Virginia circuit courts set their own local filing procedures, so check your court's rules for the filing method and any hearing requirements.

Frequently Asked Questions

It is a request asking a West Virginia Circuit 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. Because Rule 55(c) routes a final default judgment into Rule 60(b), you must show a Rule 60(b) ground such as excusable neglect or that the judgment is void.

An entry of default is the clerk's record that you did not respond on time; a default judgment is the later judgment that decides the case against you. Under Rule 55(c) the court sets aside an entry of default for good cause, which is generally easier. Once a default judgment is entered, Rule 55(c) routes you into Rule 60(b), so you must show a Rule 60(b) ground and meet the Rule 60(c)(1) timing limits.

Under Rule 60(c)(1) the motion must be made within a reasonable time. For the excusable-neglect ground under Rule 60(b)(1), it must also be made no more than one year after entry of the judgment. That one-year cap is an outer limit, not a grace period. A judgment attacked as void under Rule 60(b)(4) is limited only by the reasonable-time requirement, with no one-year cap.

Rule 60(b)(1) covers mistake, inadvertence, surprise, unavoidable cause, or excusable neglect, and Rule 60(b)(4) covers a void judgment. West Virginia courts weigh good cause under the Parsons factors: the prejudice to the plaintiff from the delay, the presence of material issues of fact and meritorious defenses, the significance of the interests at stake, and the defaulting party's intransigence, over a threshold showing of some excusable or unavoidable cause.

Often yes. If you were never properly served, the court may have lacked jurisdiction and the judgment may be void. Rule 60(b)(4) lets the court set aside a void judgment, and it is limited only by the reasonable-time requirement, not the one-year cap. Rule 4(d) also allows a default judgment to be set aside where the return receipt was signed by or delivery was refused by an unauthorized person.

The presence of material issues of fact and meritorious defenses is one of the Parsons factors West Virginia courts weigh when deciding good cause, so a real defense on the merits strengthens the motion. Whether your Circuit Court requires you to attach a proposed answer to the motion is a matter of local practice, so confirm your court's filing rules before you file.

You file it in the Circuit Court where the action is pending, using the case caption from the court record, with a supporting affidavit or declaration stating the facts of the excusable or unavoidable cause. West Virginia circuit courts set their own local filing procedures, so check your court's rules for the filing method and any hearing requirements.