1973, October, Pg. 21. Setting Aside Default Judgments.

• Author: by Jonathan C. S. Cox

2 Colo.Law. 1

The Colorado Lawyer

1973.

1973, October, Pg. 21.

Setting Aside Default Judgments

21Vol. 2, No. 12, Pg. iSetting Aside Default Judgmentsby Jonathan C. S. Cox and Arthur Keith Whitelaw, IIIMost frequently, the practicing attorney is confronted with the subject of setting aside default judgments when a client informs him that collection proceedings have been commenced against the client's assets. The attorney for such a judgment debtor-by-default is suddenly faced with a difficult procedural contest in which he must be successful in order to recoup for his client the right to defend the action on the merits. The problems involved in dislodging a well-entrenched judgment creditor are compounded by the fact that the situation requires an immediate response and the fact that many of the important rules controlling this response are scattered throughout the Colorado Reports. The purpose of this article is to collect and discuss the procedural rules and case law, including recent decisions, applicable to setting aside default judgments and to suggest various actions which the attorney for the belated defense should consider.

Initial ConsiderationsImmediately upon being advised of the entry of default judgment, the attorney should locate the case in which the judgment was entered, examine the court's file (or have a copy made and forwarded to him) and study the history and current status of the action. Particular attention should be directed to the date of entry of the default judgment.

Motions to set aside default judgments are authorized by Rule 55(c) of the Colorado Rules of Civil Procedure and must be based only upon the grounds recited in Rule 60(b), C.R.C.P. Motions alleging mistake, inadvertence, surprise or excusable neglect (the grounds most often asserted) and those relying upon fraud, misrepresentation or other misconduct of an adverse party must be filed with the trial court within six months following entry of the default judgment. Notation of the default judgment in the court's judgment docket constitutes entry of the judgment and commences the running of the six-month period.(fn1) As stated by Rule 6(b), C.R.C.P., this six-month period is not subject to enlargement by the trial court. Motions based upon the other designated grounds must be brought within a "reasonable time." Additionally, all motions to set aside default judgment are addressed to the sound, legal discretion of the trial court and the cases clearly show that prompt action enhances, and delay diminishes, the chances that such a motion will be successful.(fn2) Immediate action also should be taken to stay the execution of, or any

22 proceedings to enforce, the default judgment. A motion for such relief is authorized by Rule 62(b), C.R.C.P. This relief is discretionary with the trial court, which may impose such conditions for the security of the adverse party as are proper.

Rule 60(b): GroundsA detailed review of each of the grounds for relief specified in Rule 60(b), C.R.C.P., is beyond the scope of this article. However, in order to emphasize the importance of case law in this area, there follows a discussion of the frequently relied upon ground of "excusable neglect."

The numerous cases which have tested "excusable neglect" can be divided into two groups: those involving neglect by an attorney(fn3) and those involving neglect by the client.(fn4) While only excusable neglect is mentioned in the rule, the Colorado Supreme Court has refused to impute inexcusable neglect on the part of an attorney to his client and has...