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Oral motion to set aside default and requirement of affidavit

Author: LegalEase Solutions 

Research issues:

  1. Whether an oral motion is possible to set aside default?

Research on Westlaw revealed that oral motion may be made to a court.  However, those motions were not related to motion to set aside default.   Using the research term “oral motion to set aside default” only one case was revealed.  In Grievance Adm’r v Floyd, 447 Mich 422, 424; 523 NW2d 227, 228 (1994), a reference was made to deny an oral motion to set aside default in the footnote.  Moreover, no decision was found stating that an oral motion to set aside default could not be accepted.   Most of the case laws states that the setting aside of a default rests in the sound discretion of the trial judge.

In Novi Const, Inc v Triangle Excavating Co, 102 Mich App 586, 589; 302 NW2d 244, 245 (1980), the court has held that “a default ‘may’ be set aside only when three conditions are all fulfilled.”  “First, good cause for failure to make timely response must be shown.” Id.  “Second, a meritorious defense must be established.” Id.  “Third, the showing of a meritorious defense must be based on an ‘affidavit of facts’. GCR 1963, 520.4.” Id.  However, whether the three conditions are met is a matter within the discretion of the trial judge. Id.

In Reed v Walsh, 170 Mich App 61, 64; 427 NW2d 588, 589 (1988), the court held that “For purposes of MCR 2.603(D), “good cause” includes: (1) a substantial irregularity or defect in the proceeding upon which the default is based, (2) a reasonable excuse for failure to comply with the requirements which created the default, or (3) some other reason showing that manifest injustice would result if the default is not set aside.” 3 Martin, Dean & Webster, Michigan Court Rules Practice, p. 386. ( citing Federspiel v. Bourassa, 151 Mich.App. 656, 660, 391 N.W.2d 431 (1986).

In Levitt v Kacy Mfg Co, 142 Mich App 603, 608; 370 NW2d 4, 6 (1985), the Court cited another case as example (Meehan v. Snow, 652 F.2d 274 (C.A.2, 1981)), where the court of appeals reversed the district court’s refusal to set aside a default, because the district court had applied the higher “excusable neglect” standard for setting aside a default judgment.

Hence it has to be concluded that setting aside default is within the sound discretion of trial court and no case law provides that an oral motion to set aside default shall not be entertained.  However, the three aspects mentioned above to show good cause has to be met in deciding a motion to set aside default, without abuse of discretion.

  1. Sufficiency of an affidavit on the motion to set aside default.  

According to the fact of the case, the party was not personally served.  But his daughter was served.  An affidavit was filed by the party and his daughter stating the facts that the party was not served, instead the daughter was served.  In Glasner v Griffen, 102 Mich App 445, 447; 301 NW2d 889, 890 (1980), the court has held that  “[a] proceeding to set aside default or a default judgment, except when grounded on want of jurisdiction over the defendant, shall be granted only if good cause is shown and an affidavit of facts showing a meritorious defense is filed.”

As per GCR 1963, 520.4, a meritorious defense be established “by an affidavit of facts”.  In Novi Const, Inc v Triangle Excavating Co, 102 Mich App 586, 590; 302 NW2d 244, 246 (1980), the Court referenced Hartman v. Roberts-Walby Enterprises, Inc., 17 Mich.App. 724, 170 N.W.2d 292 (1969), lv. den. 383 Mich. 774 (1970), where the trial court ruled that the affidavit was insufficient on the fact because “it stated a mere conclusion and did not give a factual basis for that conclusion.”  The court ruled that because the affidavit in that case as in Hartman contained a general conclusory denial of liability.  Therefore, the court ruled that the defendants have failed to show a meritorious defense based on an affidavit of facts.

In Asmus v Barrett, 30 Mich App 570, 574; 186 NW2d 819, 822 (1971), the affidavit was submitted by defendants’ attorneys for meritorious defense.  The court held that attorney’s affidavit was not based on the affiant’s personal knowledge of the facts and did not state the basis or source of his information.  According to the court, the trial judge did not abuse its discretion when it refused to find that defendants had properly presented a meritorious defense.

Therefore, the requirement of filing an affidavit showing meritorious defense should be such that the affiant should have personal knowledge of the facts.  The affidavit shall not be only a conclusory statement unsupported by a single factual assertion beyond its general denial of liability.  Such affidavits shall not be considered as “affidavit of facts.”  McDonald v Kersten, 24 Mich App 681, 689-90; 180 NW2d 810, 814 (1970).  Therefore, the facts of the case shall establish the good cause requirement for setting aside the default.

Moreover, in Amco Builders & Developers, Inc v Team Ace Joint Venture, 469 Mich 90, 95; 666 NW2d 623, 626 (2003), the plaintiff did not challenge defendant’s affidavit of meritorious defense, therefore, the trial court only looked into the aspect of good cause to set aside the default.

Here, two affidavits were filed to show that the party was not personally served.  The court is not restrained from hearing an oral motion to set aside default.  However, we could not find any instance where an oral motion to set aside default was considered by the court.  Moreover, it is well settled that the setting aside of a default rests in the sound discretion of the trial judge.