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Motion to Set Aside a Default Eviction Judgment

Eviction & Other Landlord Issues

This guide can help you ask for a new trial if you missed your eviction hearing for a good reason.
Overview

Guide Overview

Warning: The information and forms in this guide are not a substitute for the advice and help of a lawyer.

This guide can help you ask for a new trial if you missed your justice court eviction hearing for a good reason. 

Instructions & Forms

Click on each step to view the instructions. For information and common questions about setting aside a default eviction, go here.

 

Checklist Steps

The caption is the heading at the top where you put party, case, and court information. You can find the information to fill out the caption on other paperwork from your case. For example, the Petition and citation you were served with should have the information you need.

  1. Fill in the Cause Number or Case Number at the top where it says, “Cause Number”.
  2. In the blank lines on the left, fill in the party information. This will include your name and the name of the person or company suing you for eviction. Make sure it matches the paperwork you were served with.
  3. Fill in the Precinct Number and County of the Justice Court. If there is a Place number, include it. Not all Justice Courts have place numbers.

Fill out the Caption for both 1) the Motion to Set Aside Default Judgment and 2) the Order on Motion to Set Aside Default Judgment. The Motion will ask the court to set aside the judgment. If you win, the judge or clerk will finish filling out the Order and sign it.

Fill out the Motion section of the Motion to Set Aside Default Judgment form as follows:

Paragraph 1: Put your name.

Paragraph 3: Put the date the hearing was scheduled to be heard.

Paragraph 4: Put the date the hearing was actually held in court.

Paragraph 5: Pick the reasons you are asking the court to set aside the judgment. You can choose:

  • "I was not served with the citation and petition at least six days before the final eviction hearing." Check this box f you did not get served with a copy of the petition and eviction citation at least six days before the hearing. The petition can be given to the defendant or anyone at the home who is at least 16 years old or, if the court allows, posted on your door. A constable, sheriff, or court-authorized person must deliver the documents. Your landlord giving you documents does not count as service. (Note that this formal service is different than the Notice to Vacate that your landlord must give you before they can file for eviction.)
  • "I did not receive at least three days’ notice of the hearing on the subject of:" Check this box if you missed a hearing on something other than the actual eviction. Enter the subject of the hearing you missed. (Example: "Motion for Continuance", "CDC declaration")
  • "Petition was filed in the improper Justice of the Peace Court." Check this box if the case was in a different precinct than the property.
  • “Other” if you want to also explain in your own words. If you need more space, write in “See Attachment” and attach a page with your reason for missing the hearing.

At the bottom of the Motion fill out all your personal information and sign. Many courts accept electronic signatures. However, ask the court clerk to be sure if you plan to type your signature.

When you file the Motion to Set Aside Default Judgment, the clerk should give you a hearing date and time. Enter the date and time in the Motion's Notice of Hearing section and sign. You may need to get the clerk or judge’s signature as well. Then enter in the court’s location.

(Note that if you are an inmate, you will also need to list the name of your jail or prison as well as your inmate number.)

You must give at least 3 days’ notice of the hearing to the opposing party.

Enter your information in the Declaration section of the Motion and sign. Use your street address. You do not need a notary.

Fill in the Motion’s Certificate of Service section. Pick how you will send a copy of the motion to the landlord or their attorney. (You must send a copy.) You can fill this out before you file and send the motion. Just be sure that you send the copy of the motion on the same day that you file and sign everything. That way the signature and notice dates are correct.

Hand Delivery: Any mentally competent adult may deliver the document to the other side by hand. You do not have to do it yourself.

Some courts require you to file multiple copies. Ask the court clerk how many they need.

It is also important to make extra copies of everything before you file. This includes copies of any evidence or attachments. Never send or file your only copy of anything. Bring copies of everything to your hearing.

You may be able to file in person with the court clerk or online. Not all Justice Courts are set up for online filing, and not all courts accept in person filing due to COVID-19. As your court clerk how you can file the motion.

Go to the hearing. It may be in person or online. Be sure to find out before your hearing.

Forms Required

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