What happens when you, the landlord, receive a default and judgment against a tenant, and then the tenant decides to file a request to set aside the default and judgment?
On the positive side, by the time the landlord already has a judgment, chances are good that the tenant is already out of the property and the landlord has possession. But by the filing of this motion, the tenant is trying to regain possession. There are a couple ways in which the court may grant the tenant’s motion to set aside the default judgment.
The court may set aside the default judgment against the tenant if:
- The default was obtained by fraud
- The default was due to the fault of the attorney
- The default was due to the mistake, inadvertence, surprise or excusable neglect of the party
- The defendant never received actual notice of suit
There is a timeframe from which the tenant must make the notice to set aside the default judgment. Normally, it is 6 months from entry or default or default judgment.
If a tenant makes a motion to set aside a default judgment, the landlord should immediately oppose the motion to set aside the default. In addition, the landlord should argue that the setting aside of a default be conditioned on payment of all rent into court, for the period from when the eviction could have been obtained on the default judgment through trial. The landlord should also insist that the default be reinstated if the tenant fails to pay.
Read David Piotrowski’s “Landlord Best Practices and Eviction Overview” book. If you need help with an eviction in Los Angeles or San Francisco, contact us today.
