Setting aside a Vermont default judgment: the plaintiff had to swear to liability, not just damages

Vermont removed the two-step default procedure most states use. There is no entry of default here, only a motion for a default judgment.

What it added in its place is a stronger evidentiary requirement than almost any other state imposes: the moving party must file an affidavit on personal knowledge setting out facts as to liability and damages.

Most states require an affidavit of the amount due. Vermont requires the plaintiff to swear to the facts that make you liable in the first place.

One step, not two

Vt. R. Civ. P. 55(a):

Motion for Default Judgment. When a party against whom a judgment for affirmative relief is sought by complaint, cross-claim, counterclaim, or other pleading has failed to plead or otherwise defend, the party seeking the affirmative relief may file a motion for a default judgment.

There is no clerk-entered default to be set aside separately, and no interlocutory step. What exists is a motion, and then a judgment.

That simplifies the first question every defaulted defendant elsewhere has to ask. In Vermont, if something has happened, it is a judgment.

The affidavit requirement

Rule 55(c)(1):

Affidavits Required. The court shall not enter judgment by default against a party who has not appeared in the action until the moving party files an affidavit made on personal knowledge and setting forth facts as to liability and damages. The court shall not enter judgment by default against a minor or incompetent person unless represented in the action by a guardian, conservator, or other such representative who has appeared therein. The moving party must state in an affidavit whether the opposing party is at least 18 years of age, and whether the moving party has any knowledge as to the competency of the opposing party.

Three separate requirements, all preconditions:

The liability half is the one to test. In an assigned-debt case, whether the affiant has personal knowledge of the facts establishing liability — as opposed to access to a file — is a real question, and the rule requires it in terms.

An affidavit that recites the balance and nothing about how the obligation arose does not set forth facts as to liability.

When no notice at all is required

Rule 55(c)(2):

When Claim Is for a Sum Certain and Opposing Party Has Not Appeared. If the moving party's claim is for a sum certain or for a sum which can by computation be made certain, and the opposing party is not a minor or incompetent, without notice or hearing and upon affidavit of the amount due, the court may enter judgment for that amount and costs.

Where the claim is for a sum certain and you never appeared, judgment may be entered "without notice or hearing". That is the position most defaulted Vermont defendants are in, and it means the absence of notice is not itself a defect.

What remains checkable is the sum certain characterization and the affidavit — both the amount-due affidavit here and the liability-and-damages affidavit required by (c)(1).

If you had appeared

Vermont routes an appearing party differently, and the clerk does the serving:

If the party against whom judgment by default is sought has appeared in the action judgment may be entered by the judge after hearing, upon at least 7 days' written notice served by the clerk.

Three protections: a judge, after hearing, on 7 days' written notice served by the clerk. If you had appeared in any form and none of that happened, the judgment did not follow the rule.

Setting it aside

Rule 55(d):

The court may set aside its order granting a motion for a default judgment for good cause, and it may set aside a final default judgment under Rule 60(b).

The distinction is between the order and the final judgment. Where the order has been granted but final judgment has not entered, good cause applies and no deadline is stated — a materially better position, and a reason to move quickly.

The one-year rule

Vt. R. Civ. P. 60(b) carries the familiar six grounds, and its timing sentence reads:

The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.

Two further limits

Rule 55(b) subjects a default judgment to "the limitations of Rule 54(c)" — it cannot exceed or differ in kind from what the complaint demanded.

Rule 55(e): "The court shall not enter judgment by default against the State of Vermont or an officer or agency thereof" except on the showing that rule requires.

If you have not been defaulted yet

See responding to a Vermont complaint for the deadline and what the answer must contain.

How Vermont compares

A short checklist

1. Pull the affidavit first. It had to be on personal knowledge and cover liability as well as damages.
2. Test the personal-knowledge claim, particularly in an assigned-debt case.
3. Check for the age and competency statements — the rule requires them separately.
4. Establish whether final judgment has entered or only an order granting the motion. Good cause with no deadline applies to the order.
5. If you had appeared, look for a hearing, a judge, and 7 days' notice served by the clerk.
6. If you never appeared and the claim was for a sum certain, expect no notice — and focus on the affidavits and the sum-certain characterization instead.
7. Count one year from entry for the first three Rule 60(b) grounds.
8. Compare the judgment to the complaint under Rule 54(c).

Where these rules live

• Vt. R. Civ. P. 55 — Default
• Vt. R. Civ. P. 60 — Relief from Judgment or Order

This page explains what the rules say. It isn't legal advice, and what amounts to good cause or excusable neglect is developed in case law this site doesn't cover.