Setting aside a Colorado default judgment: 182 days, and a different rule for each half

Colorado draws a line most people do not notice until it matters. An entry of default and a default judgment are two different things, and they come off on two different standards.

One asks for good cause. The other has a deadline measured in days, and it is not the familiar federal one.

The two halves of Rule 55(c)

C.R.C.P. 55(c) does the whole allocation in one sentence:

Setting Aside Default. For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).

So:

"Good cause" is the easier of the two by a wide margin. If the clerk has entered your default but no judgment has followed, you are in the better position — and check the docket to find out which you are actually facing before drafting anything.

The entry itself comes from Rule 55(a):

Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default.

The 182 days

C.R.C.P. 60(b) lists five grounds and then attaches two different clocks:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1) Mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is void; (4) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (5) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1) and (2) not more than 182 days after the judgment, order, or proceeding was entered or taken.

Two deadlines, and both apply:

• Every Rule 60(b) motion must be made within a reasonable time.
• Grounds (1) and (2) — mistake, inadvertence, surprise, excusable neglect, and fraud — carry an absolute outer limit of 182 days from entry.

Colorado uses 182 days where the federal rule uses one year. If you are working from a federal template or another state's practice, that is the number that will catch you out.

Grounds (3), (4) and (5) have no fixed outer limit, only the reasonable-time requirement. A void judgment under (3) — most often one entered without valid service or without jurisdiction — is therefore not cut off at 182 days.

Filing does not stop enforcement

A sentence in the middle of Rule 60(b) that surprises people:

A motion under this section (b) does not affect the finality of a judgment or suspend its operation.

Filing the motion does not stay collection. If a garnishment or levy is running, the motion alone will not stop it; that requires separate relief.

Three routes the rule expressly preserves

The end of Rule 60(b) keeps some older avenues open:

This Rule does not limit the power of a court: (1) To entertain an independent action to relieve a party from a judgment, order, or proceeding, or (2) to set aside a judgment for fraud upon the court; or (3) when, for any cause, the summons in an action has not been personally served within or without the state on the defendant, to allow, on such terms as may be just, such defendant, or his legal representatives, at any time within 182 days after the rendition of any judgment in such action, to answer to the merits of the original action.

That third route matters. Where the summons was not personally served — service by publication or mail, for instance — a defendant may come in and answer to the merits within 182 days of the judgment. That is a separate mechanism from a Rule 60(b)(1) motion, and it does not require showing excusable neglect.

The same paragraph abolishes the old writs: "Writs of coram nobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action."

Grounds for attacking the judgment on the record

Before reaching excusable neglect, check whether the judgment should have been entered at all. Rule 55(b)(1) contains several conditions:

A party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, guardian ad litem, conservator, or such other representative who has appeared in the action. If the party against whom judgment by default is sought has appeared in the action, the party (or, if appearing by representative, the party's representative) shall be served with written notice of the application for judgment at least 7 days prior to the hearing on such application. … However, before judgment is entered, the court shall be satisfied that the venue of the action is proper under Rule 98.

Three checkable requirements: the 7 days' written notice to any party who has appeared, the protection for infants and incompetent persons, and the court's obligation to be satisfied on venue before entering judgment.

Where service was by publication, mail, or out-of-state personal service, Rule 55(f) adds a proof requirement:

In actions where the service of summons was by publication, mail, or personal service out of the state, the plaintiff, upon expiration of the time allowed for answer, may upon proof of service and of the failure to plead or otherwise defend, apply for judgment. The court shall thereupon require proof to be made of the claim and may render judgment subject to the limitations of Rule 54(c).

And Rule 55(d) caps what a default judgment can award at all: "In all cases a judgment by default is subject to the limitations of Rule 54(c)" — you cannot get more, or different, relief than the complaint demanded.

There is also a special rule in eviction cases. Rule 55(b)(2):

In forcible entry and detainer cases, a court may enter default pursuant to subsection (1) above; however, the court shall not enter a default judgment for possession before the close of business on the date upon which an appearance is due as set forth by C.R.S. 13-40-111(1).

How Colorado compares

A short checklist

1. Check the docket for which you are facing — an entry of default, or a default judgment. The standards are not the same.
2. If it is only an entry of default, move under Rule 55(c) for good cause. Do not brief it as a Rule 60(b) motion.
3. Count 182 days from entry if you are relying on mistake, inadvertence, surprise, excusable neglect or fraud. Not one year.
4. Move within a reasonable time regardless — the outer limit is not permission to wait.
5. Consider whether the judgment is void under 60(b)(3). That ground is not capped at 182 days.
6. If the summons was never personally served, look at the separate route in Rule 60(b) allowing you to answer to the merits within 182 days of the judgment.
7. Check whether you had appeared — if so, you were entitled to 7 days' written notice of the application for judgment.
8. Check the relief against the complaint. Rule 54(c) limits what a default judgment may award.
9. Do not assume filing stops collection. Rule 60(b) says it does not suspend the judgment's operation.

Where these rules live

• C.R.C.P. 54 — Judgments; Costs
• C.R.C.P. 55 — Default
• C.R.C.P. 60 — Relief from Judgment or Order
• C.R.C.P. 98 — Place of Trial
• C.R.C.P. 103 — Garnishment

This page explains what the rules say. It isn't legal advice, and what constitutes excusable neglect under C.R.C.P. 60(b)(1) is developed in case law this site doesn't cover.