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Setting Aside a Default Eviction Judgment

Eviction & Other Landlord Issues

This article answers common questions about setting aside a default eviction judgment.

Here, learn about filing a Motion to Set Aside Default Judgment. This is a way to ask a justice court to undo an order evicting you when you miss a court date. A Motion to Set Aside Default Judgment is only an option if you file it in time and under specific circumstances.

What is a Motion to Set Aside Default Judgment?

A default judgment is what can happen when you lose a case or ruling because you missed the hearing. A motion asks the court to do something. A Motion to Set Aside Default Judgment asks the court to take back a judgment because one party failed to show up to the scheduled hearing.

You can use the motion for an eviction hearing or any other court action during the eviction process in which a party was not present and the court made a ruling. For example, a ruling on whether to grant a hearing on a Motion for Continuance.

Where can I get Motion to Set Aside Eviction forms for Justice Court?

You can find forms and instructions designed specifically for eviction cases in Justice Court here.

Why would a court decide to set aside a default eviction judgment?

A judge may grant your motion if you can show good cause. “Good cause” means a very good reason for missing the hearing. It is up to the court to decide whether the reason is a good cause. 

Good cause might include:

  • You did not receive proper notice of the hearing.
  • You had an emergency, such as a car accident or a family sickness, that did not allow you to make the hearing.
  • Your landlord filed the case in the wrong precinct.

Note that missing court because of work is not usually a good reason to set aside a judgment.

How long will it take the judge to decide whether to set aside the default judgment?

The judge must decide within 21 days after signing the judgment or ruling you want to set aside. If the judge does not rule on your Motion to Set Aside Default Judgment by 5:00 P.M. on the 21st day after the judgment, it is automatically denied.

Important – Time Limit for Appeal: Remember you only have five days to appeal an eviction judgment to send your case to a higher court. If you want to appeal, you must do so within five days. Filing a Motion to Set Aside Default Judgment does not give you extra time to appeal.

How is a Motion to Set Aside Default Judgment different than an appeal?

A Motion to Set Aside Default Judgment asks the court for another hearing. If a Justice of the Peace grants your Motion to Set Aside Default Judgment, then the new hearing will take place in Justice Court.

An appeal asks to move the case to a higher court. If you appeal an eviction, it will send the case to County Court.

Should I ask the Justice Court to rehear my case or should I appeal to County Court?

You have an automatic right to appeal an eviction case to County Court, but you only have five days to do so. There may also be significant costs.

You have longer to file a Motion to Set Aside Default Judgment, but there is no guarantee that the judge will grant you a new hearing. You do not have the right to set aside the default judgment.

You may both appeal and move to set aside the default judgment. Remember that asking to set aside the default judgment does not lengthen your five day window to file an appeal.

Should I talk to a lawyer?

If possible, yes. You may even be able to get a fee legal aid attorney. See here for how to find legal help.

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