For a motion to set aside default judgment after service by publication, see form 26-2; for a motion to set aside default judgment because of military service, see form 26-3.
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Include the following notice if a minor is named in the caption or if the motion contains other unredacted sensitive data. See § 6 of the Introduction in volume 1 of this manual concerning protection of sensitive data in filed documents. |
NOTICE: THIS DOCUMENT
CONTAINS SENSITIVE DATA
[Caption. See § 3 of the Introduction in volume 1 of this manual.]
Motion to Set Aside Default Judgment
This Motion to Set Aside Default Judgment is brought by [name of movant], [party designation], who shows in support:
1.This motion is presented within the time allowed by law on motions for new trial, the default judgment in this case having been rendered on [date].
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Select one of the following. |
2.The failure of [name of movant] to [file an answer before judgment/appear on the trial date] was the result of accident and mistake, rather than [name of movant]’s intentional or conscious indifference, because: [specify facts to show basis of mistake that caused defaulting party to fail to file answer or to fail to appear at trial].
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Or |
2.The failure of [name of movant] to [file an answer before judgment/appear on the trial date] was the result of improper service. Specifically, [set forth any deficiencies in the citation, in service, in return, in plaintiff’s petition].
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Include 3., 4., and 5. if lack of notice is not the basis of the motion or if it is unclear whether the trial court will grant a new trial based on lack of notice. |
3.Petitioner’s cause of action is based on [describe nature of cause of action]. To this cause of action, [name of movant] can and does set up the meritorious defense of [state specific facts regarding defense].
4.A new trial in this case will neither occasion delay nor prejudice Petitioner, because [state specific facts].
5.[Name of movant] will tender reasonable costs and expenses incurred by reason of this motion.
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Continue with the following. |
[Name of movant] prays that the Court grant the Motion to Set Aside Default Judgment.
[Name]
Attorney for [name of movant]
State Bar No.:
[Email address]
[Address]
[Telephone]
[Fax]
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For certificate of service, see form 21-11. |
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Include the following if applicable. |
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An unsworn declaration may be used in place of an affidavit. See form 8-27. |
Affidavit of [name]
[Name] appeared before me in person today and stated under oath as follows:
“My name is [name of respondent]. I am above the age of eighteen years, and I am fully competent to make this affidavit. I am the movant in this Motion to Set Aside Default Judgment. The facts stated in this affidavit are within my personal knowledge and are true and correct.
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Allege specific facts and basis for personal knowledge. |
[Name of affiant]
SIGNED under oath before me on ______________________________.
Notary Public, State of Texas