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South Carolina Motion to Vacate or Set Aside Entry of Default and Default Judgment Due to Mistake, Inadvertence, Surprise, or Excusable Neglect

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In deciding whether to set aside a default judgment, courts seek to balance two competing interests: (1) the need to promote judicial economy; and (2) the need to preserve an individual's right to defend on the merits. Therefore, in addition to the requirement that defendant show that the judgment was entered through excusable neglect or another statutory ground, the court will consider a variety of factors, including:


" the nature and extent of the prejudice which may be suffered by the non-defaulting party if the default is set aside;


" the presence of material issues of fact;


" the presence of a meritorious defense to the claim;


" the significance of the interests at stake, including, but not limited to, the amount of money involved;


" whether the failure to answer was intentional or willful or the result of conscious indifference;


" whether party or counsel bears responsibility for default; and


" the availability of less drastic sanctions.

A South Carolina Motion to Vacate or Set Aside Entry of Default and Default Judgment Due to Mistake, Inadvertence, Surprise, or Excusable Neglect is a legal remedy available to parties who have had a default judgment entered against them in a civil lawsuit due to various reasons. This motion allows the party to request the court to vacate or set aside the default judgment based on valid grounds, such as mistake, inadvertence, surprise, or excusable neglect. There are different types of situations where a party may file a Motion to Vacate or Set Aside Entry of Default and Default Judgment in South Carolina: 1. Mistake: This type of motion is filed when there was an error or misunderstanding that led to the default judgment. It may involve a mistaken understanding of the court proceedings, improper service of the summons or complaint, or a mistake made by the party's attorney. 2. Inadvertence: If a party unintentionally failed to respond to the lawsuit within the required time frame, they can file a motion based on inadvertence. This could be due to oversight, an unexpected event, or any other valid reason that resulted in missing the deadline. 3. Surprise: In certain cases, a party may argue that they were surprised by the lawsuit or the default judgment. This could be due to lack of notice or knowledge about the legal action, preventing them from adequately responding to the lawsuit. 4. Excusable Neglect: If a party failed to respond to the lawsuit due to excusable neglect, they may file a motion based on this ground. Excusable neglect refers to valid reasons that prevented the party from timely responding, such as illness, personal emergency, or any other unavoidable circumstance. When filing a Motion to Vacate or Set Aside Entry of Default and Default Judgment, the moving party must provide a detailed explanation of the mistake, inadvertence, surprise, or excusable neglect that led to the default judgment. They should also include any supporting evidence or documentation that substantiates their claim. It is important to note that each case is unique, and the success of a motion will depend on the specific circumstances and the court's discretion. It is advisable to consult with an experienced attorney in South Carolina to assess the viability of filing such a motion and to navigate the legal process effectively.

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FAQ

Complete the Motion form. Explain the reason why you feel the judgment should be vacated. You may attach any supporting documents. NOTE: Now is not the time to explain your allegations or defenses of the case-only why the judgment should be vacated.

Under CCP § 473(b), the court may set aside a default and default judgment if the defendant asking for the set aside presents enough evidence to the court to demonstrate that the default was entered by inadvertence, mistake, surprise, or excusable neglect.

Judgment is a void judgment if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process, Fed.

You must file the Motion to Vacate within 180 days of learning about the judgment against you. It is best practice to file as soon as possible after learning of the judgment. 1. Fill out a Notice of Motion to Vacate Judgment and Declaration (Form SC-135).

A judgment lien in South Carolina will remain attached to the debtor's property (even if the property changes hands) for ten years.

A magistrate's judgment is valid for three years, whereas a circuit court judgment is valid for ten years.

Rule 55(a) provides that when a party fails to respond to a complaint, the clerk shall record an entry of default.

Removing A Judgment from Your Record There are only three ways in which a judgment can be made to go away: paying the debt, vacating the judgment or discharging the debt through bankruptcy.

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This Rule retains the one year limitation for Rule 60(b)(1)-(3) for mistake, inadvertence, excusable neglect, newly-discovered evidence, and fraud; but permits ... To ask the judge to set aside your default judgment, you must file a “motion” (a formal written request) with the court. The Self-Help Center has a form Motion ...The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record ... *Examples of mistake, inadvertence, surprise, or excusable neglect may include: Illness of Defendant; Attorney's abandonment of client; Fraud by the Plaintiff. Rule 55(b)(1). authority to enter default judgment, default judgment must be entered by a judge in the proper trial division. Rule 55(b)(2)a. the motion for  ... Apr 23, 2019 — Under Rule 60, a judgment may also be set aside due to mistake, inadvertence, surprise or excusable neglect. Rule 60(b)(1), SCRCP. In ... The order was made against you because of your own “mistake, inadvertence, surprise, or excusable neglect. ... a written notice of entry of that default judgment. Feb 22, 2022 — Parceling out the com- mon-law and equitable writs did not change the meaning of “mistake, inadvertence, surprise, or excusable neglect.”. Examples of mistake, inadvertence, surprise, or excusable neglect include: • Illness of defendant. • Attorney's abandonment of client. • Fraud of the plaintiff. File a motion for relief from default judgment (also called motion to set aside or vacate a judgment) to reopen a case you lost by default.

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South Carolina Motion to Vacate or Set Aside Entry of Default and Default Judgment Due to Mistake, Inadvertence, Surprise, or Excusable Neglect