For motion to set aside default judgment on other bases, see form 26-1.
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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 after Service by Publication
This Motion to Set Aside Default Judgment after Service by Publication 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 after service by publication, the default judgment in this case having been rendered on [date].
2.Service on [name of movant] was by publication. Specifically, [set forth details of service]. [Name of movant] did not file a timely answer or enter an appearance within the prescribed period of time.
3.The default judgment signed by this Court on [date] should be set aside because
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Include the following items as applicable. |
a.the trial court did not appoint an attorney ad litem as required by rule 244 of the Texas Rules of Civil Procedure.
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And/Or |
b.the trial court did not approve and sign the statement of evidence as required by rule 244 of the Texas Rules of Civil Procedure.
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And/Or |
c.the citation by publication was defective. Specifically, [set forth deficiencies].
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And/Or |
d.there was insufficient evidence adduced at the hearing to support the trial court’s judgment.
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And/Or |
e.the court made an error in the application of the law to the facts.
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And/Or |
f.Petitioner procured the service and judgment by fraud.
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Continue with the following. |
4.There is good cause to grant a new trial in this case.
[Name of movant] prays that the Court grant the Motion to Set Aside Default Judgment after Service by Publication.
[Name]
Attorney for [name of movant]
State Bar No.:
[E-mail address]
[Address]
[Telephone]
[Fax]
Notice of Hearing
The above motion is set for hearing on __________________ at ____________ __.m. in [designation and location of court].
SIGNED on ________________________________.
Judge or Clerk
Certificate of Service
I certify that a true copy of this [document/[title of document]] was served in accordance with rule 21a of the Texas Rules of Civil Procedure on the following on [date]:
[Name of attorney of record or party to be served] by [electronic filing manager/e-mail at [e-mail address]/fax at [fax number]/personal delivery at [address]/commercial delivery service at [address]/certified mail at [address]/first-class mail at [address]]. [Repeat for each attorney of record or party to be served.]
[Name]
Attorney for [name of movant]
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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 after Service by Publication. 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