Setting aside a Virginia default judgment: three windows, and the last one has no excusable neglect

Virginia is the hardest state in the country in which to undo a default judgment, and the reason is not one rule but the way three of them stack.

Before judgment you need good cause. For twenty-one days after it you get a real, flexible standard that weighs why you were late. After that the door closes onto four grounds, and excusable neglect is not among them.

Most states let a defendant argue excusable neglect for a year. Virginia gives you twenty-one days.

The three windows

Everything below follows from that table. Find out which window you are in before anything else.

Before judgment: good cause

Va. R. Civ. P. 3:19(b):

Relief from Default. Prior to the entry of judgment, for good cause shown the court may grant leave to a defendant who is in default to file a late responsive pleading. Relief from default may be conditioned by the court upon such defendant reimbursing any extra costs and fees, including attorney fees, incurred by the plaintiff solely as a result of the delay in the filing of a responsive pleading by the defendant.

Good cause, and the court may condition relief on reimbursing the plaintiff's extra costs and fees — including attorney fees — caused solely by the delay. Expect to be asked to pay something. That is far cheaper than the alternative.

What being in default already costs you

Rule 3:19(a):

Failure Timely to Respond. A defendant who fails to timely file a responsive pleading as prescribed in Rule 3:8 is in default. A defendant in default is not entitled to notice of any further proceedings in the case except as provided in subsection (c) below; and written notice of any further proceedings must be given to counsel of record, if any, until default judgment is entered against such defendant. The defendant in default is deemed to have waived any right to trial of issues by jury.

Three consequences at once: no notice of further proceedings (with the (c) exception), notice still owed to counsel of record if any until judgment, and the jury right is waived.

Twenty-one days: the only flexible standard Virginia offers

Rule 3:19(d)(1):

Within 21 Days. During the period provided by Rule 1:1 for the modification, vacation or suspension of a judgment, the court may by written order relieve a defendant of a default judgment after consideration of the extent and causes of the defendant's delay in tendering a responsive pleading, whether service of process and actual notice of the claim were timely provided to the defendant, and the effect of the delay upon the plaintiff. Relief from default may be conditioned by the court upon the defendant reimbursing any extra costs and fees, including attorney fees, incurred by the plaintiff solely as a result of the delay in the filing of a responsive pleading by the defendant.

Three factors, and they are the closest thing Virginia has to an excusable-neglect test:

Note the second one. A defendant who was served in a technically valid way but had no actual notice is squarely within this factor — and this is the window in which that argument works.

Relief must come by written order, and again may be conditioned on paying the plaintiff's extra costs and fees.

After twenty-one days the standard changes completely

Rule 3:19(d)(2):

After 21 Days. A final judgment no longer within the jurisdiction of the trial court under Rule 1:1 may not be vacated by that court except as provided in Virginia Code §§ 8.01-428 and 8.01-623.

And § 8.01-428(A) is the whole of what remains:

Default judgments and decrees pro confesso; summary procedure. Upon motion of the plaintiff or judgment debtor and after reasonable notice to the opposite party, his attorney of record or other agent, the court may set aside a judgment by default or a decree pro confesso upon the following grounds: (i) fraud on the court, (ii) a void judgment, (iii) on proof of an accord and satisfaction, or (iv) on proof that the defendant was, at the time of service of process or entry of judgment, a servicemember as defined in 50 U.S.C. § 3911. Such motion on the ground of fraud on the court shall be made within two years from the date of the judgment or decree.

Four grounds. Read what is not there:

There is no catch-all. A Virginia defendant who missed the deadline through ordinary neglect, and who lets twenty-one days pass, has no route back under this section.

That is why Rule 1:1's twenty-one days is the most important deadline in Virginia civil practice — not because of the appeal, but because it is the last day the reason you were late still matters. See Virginia's 21-day rule.

The two grounds most likely to help

A void judgment (ii) carries no time limit and is the usual route for a defendant who was never properly served. Check the return of service and the manner of service before anything else — and where service was by posting, note that Rule 3:19(c)(1) bars judgment "until the requirements of Code § 8.01-296(2)(b) have been satisfied."

Servicemember status (iv) is a complete ground on proof of status at the time of service of process or entry of judgment. But subsection E closes the door on anyone else:

Nothing in this section shall constitute grounds to set aside an otherwise valid default judgment against a defendant who was not, at the time of service of process or entry of judgment, a servicemember as defined in 50 U.S.C. § 3911.

If you were never told the order was entered

§ 8.01-428(C) is a separate, easily missed route:

Failure to notify party or counsel of final order. If counsel, or a party not represented by counsel, who is not in default in a circuit court is not notified by any means of the entry of a final order and the circuit court is satisfied that such lack of notice (i) did not result from a failure to exercise due diligence on the part of that party and (ii) denied that party an opportunity to pursue post-trial relief in the circuit court or to file an appeal therefrom, the circuit court may, within 60 days of the entry of such order, modify, vacate, or suspend the order or grant the party leave to appeal.

Note the limit built into the first line: this applies to a party "who is not in default". It is not a route out of a default judgment — it is for a party who was litigating and simply never learned the order had been entered. Sixty days, and the court may instead grant leave to appeal, with the appeal clock running from that order.

§ 8.01-428(B) allows correction of clerical mistakes "at any time", and § 8.01-428(D) preserves an independent action, relief under § 8.01-322 for a defendant not served with process, and relief for fraud upon the court.

You can still fight the amount

Even in default, Virginia lets a defendant contest damages. Rule 3:19(c)(3):

If a defendant participates in the hearing to determine the amount of damages such defendant may not offer proof or argument on the issues of liability, but may (i) object to the plaintiff's evidence regarding damages, (ii) offer evidence regarding the quantum of damages, (iii) participate in jury selection if a jury will hear the damage inquiry, (iv) submit proposed jury instructions regarding damages, and (v) make oral argument on the issues of damages.

Five specific rights, and they are worth using. Liability is gone; the number is not.

And under Rule 3:19(c)(2), if the relief demanded is unliquidated, "the court will hear evidence and fix the amount thereof, unless the plaintiff demands trial by jury."

Were you given notice of the motion?

Rule 3:19(c)(1) requires it:

Written notice of such motion must be mailed to the defendant's last known address, if known or reasonably available to plaintiff or plaintiff's counsel, or otherwise to the service-of-process address for defendant. If plaintiff is unable to provide such notice, the motion must contain a certification that plaintiff has made reasonable, good faith, efforts to provide notice to the defendant.

If neither the mailing nor the certification appears in the file, that is worth raising — inside the twenty-one days, where it goes directly to the "actual notice" factor.

If a garnishment has already started

Virginia garnishment runs on its own timetable, independent of any motion here. See stopping a Virginia wage garnishment.

And if the problem is how you were served rather than why you were late, see the Virginia motion to quash service.

How Virginia compares

A short checklist

1. Establish which window you are in. Before judgment, within 21 days, or after — the standards are completely different.
2. If judgment has not entered, move now under Rule 3:19(b) and expect to pay the plaintiff's extra costs.
3. If judgment entered within the last 21 days, this is your only chance to argue why you were late. Address all three factors, especially whether you had actual notice.
4. Offer to reimburse costs. Both subsections contemplate it, and it makes relief easier to grant.
5. After 21 days, work through the four grounds — fraud on the court, void, accord and satisfaction, servicemember status. Nothing else is available.
6. Test service first. A void judgment has no time limit, and bad service is the usual reason.
7. Check for the notice of the motion or the good-faith certification in the file.
8. If damages are unliquidated, participate in that hearing — you keep five specific rights even in default.
9. Do not confuse § 8.01-428(C) with default relief. It applies to a party not in default.

Where these rules live

• Va. Code § 8.01-428 — Setting aside default judgments; clerical mistakes
• Va. R. Civ. P. 3:19 — Default
• Va. R. Civ. P. 1:1 — Finality of judgments
• Va. R. Civ. P. 3:8 — Responsive pleadings

This page explains what the rule and the statute say. It isn't legal advice, and what amounts to good cause or fraud on the court is developed in case law this site doesn't cover.