What to Do if You Have Been Defaulted in Your Eviction Case

The court can enter a default if you don’t respond in a court case. If your landlord gets a default judgment in an eviction case, you can be evicted without going to court. You can also have a judgment for money entered against you.

How Eviction Starts

You can only be evicted by a sheriff, a sheriff's deputy, or court officer. Your landlord must have an order of eviction before you can be legally evicted. Read the articles Eviction: What Is It and How Does It Start? and Going to Court in an Eviction Case to learn about the eviction process.

An eviction court case starts when a landlord files a complaint for eviction in the district court. If you get a summons and complaint for eviction, you are expected to respond to it by showing up for your court date. If you don’t show up to court, the court can enter a default.

How You Can Be Defaulted

If you don’t go to court, your landlord can ask the judge to find you in default. Then the judge may let your landlord show there is reason for you to be evicted. If the landlord does that, the judge can enter a default judgment against you.

An eviction judgment in an eviction case can be for possession, meaning you’ll have to move out. You may also have to pay any rent the landlord claims you owe. An eviction judgment can also be for damages, meaning you’ll have to pay money to the landlord. An eviction judgment can be for both possession and money.

If a judgment awards possession of the property to your landlord, you will be given some time to move out – usually 10 days. After that time, your landlord can ask the judge for an Order of Eviction against you. To learn more about this process, read Eviction after Court is Over. After the judge enters a default judgment against you, you can’t do anything in your case until you have the judgment set aside. You can ask the judge to set it aside and schedule a new hearing by filing either a Motion to Set Aside Default Possession Judgment or a Motion and Affidavit to Set Aside Default Money Judgment. You can use the Do-It-Yourself Motion to Set Aside Default (Eviction) tool to create your motion(s). You must file these motions within 10 days of when the judge signed the judgment.

Money Judgment

A judge can only set aside a money judgment if either:

• Your landlord or your landlord’s lawyer failed to serve you with a copy of the summons and complaint; or

• You have good cause for not going to the hearing or responding to the complaint, and a meritorious (good) defense to the claims your landlord is making against you.

It can be difficult to prove these things. You may want to talk to a lawyer to get help with your motion to set aside the default judgment. If you have a low income, you may qualify for free legal services. Whether you have a low income or not, you can use the Guide to Legal Help to find lawyers in your area. If you are not able to get free legal services but can’t afford high legal fees, consider hiring a lawyer for part of your case instead of the whole thing. This is called limited scope representation. To learn more, read Limited Scope Representation (LSR): A More Affordable Way to Hire a Lawyer. To find a limited scope lawyer, follow this link to the State Bar of Michigan lawyer directory. This link lists lawyers who offer limited scope representation. You can narrow the results to lawyers in your area by typing in your county, city, or zip code at the top of the page. You can also narrow the results by topic by entering the kind of lawyer you need (divorce, estate, etc.) at the top of the page.

Failure to Serve

Your landlord or landlord’s lawyer’s failure to serve the forms on you may be accidental or on purpose. Either way, it may be hard to prove that you did not receive the summons and complaint.

Good Cause

Good cause is a good reason why you didn’t go to the hearing or respond to the complaint. Good cause can be a serious problem or mistake with the way the case was handled. It can also be for things beyond your control like a life threatening emergency on the day of court, or fraud or misconduct by your landlord (like telling you that you didn’t need to go to court).

Meritorious Defense

A meritorious (good) defense is a good argument for why your landlord should not get a judgment against you. For example, if you’re being evicted for not paying your rent, you may have a good defense if you used your rent money to make a needed repair your landlord knew about but wouldn’t make.

If you don’t have good cause and a good defense, the judge will not set aside the default.

Possession Judgment

Filing a Motion to Set Aside Default Possession Judgment may not stop the eviction timeline. Your landlord can still get an Order of Eviction 10 days after the judgment unless you ask the judge to stop the case from moving forward. If you want the judge to stop your eviction case from moving forward, you need to either deposit one month’s rent with the court or have a reason a stay should be granted. Granting a stay puts the case on hold.

A stay can be granted if you had a good reason for not going to the hearing or responding to the complaint. A good reason involves matters beyond your control. Examples are a life threatening emergency on the day of court, or fraud or misconduct by your landlord (like telling you that you didn’t need to go to court).

There are other, more complicated reasons a stay can be granted. When you’re trying to stop an eviction, you may want to have a lawyer to help you raise these other reasons an eviction should be stopped. If you have a low income, you may qualify for free legal services. Whether you have a low income or not, you can use the Guide to Legal Help to find lawyers in your area. If you are not able to get free legal services but can’t afford high legal fees, consider hiring a lawyer for part of your case instead of the whole thing. This is called limited scope representation. To learn more, read Limited Scope Representation (LSR): A More Affordable Way to Hire a Lawyer. To find a limited scope lawyer, follow this link to the State Bar of Michigan lawyer directory. This link lists lawyers who offer limited scope representation. You can narrow the results to lawyers in your area by typing in your county, city, or zip code at the top of the page. You can also narrow the results by topic by entering the kind of lawyer you need (divorce, estate, etc.) at the top of the page.

When you file your motion, be prepared to speak with the judge about why your stay should be granted. A judge could make a decision based on what is written in your motion alone, but you should be ready to explain to the judge in person why your stay should be granted.

If the stay is granted, a hearing will still be set for your Motion to Set Aside Default Possession Judgment. The hearing will happen within 14 days after the stay is issued. Your eviction case will be stopped until the hearing on your motion is done.

If the stay is not granted, the eviction timeline will continue and you may be evicted. A hearing for your Motion to Set Aside Default Possession Judgment will still be scheduled, but it might not happen until after the date your landlord can evict you.

Filing Deadline

Whether you are asking a judge to set aside a judgment for possession, money, or both, you must file your motion within 10 days after the default judgment was issued.

If you missed the deadline you cannot file your motion. You may be able to request relief using a Motion for Relief from Judgment. There is not a form for this. You may want to talk to a lawyer if you want to file this motion. If you file a Motion for Relief from a Judgment, you must show it would be improper to let the judgment stand.

Filing Your Motion

Use the Do-It-Yourself Motion to Set Aside Default (Eviction) tool to complete your motion(s). After you complete the forms, file them with the court and serve them on your landlord or your landlord’s lawyer. You can file your forms in person, by e-filing, or some other method the court allows. You may want to contact the court to see if there is a preferred filing method. To learn more about e-filing, review the toolkit E-Filing Basics.

Once you file your forms, the court clerk will schedule a hearing. Read the checklist for your motion for step-by-step instructions of what to do.

Going to Court

At the hearing, each side has a chance to tell the judge its side of the story. Since this is your motion, you go first. Tell the judge why the default should be set aside. Answer any questions the judge asks you as completely as possible. Then your landlord (or your landlord’s lawyer) will get to tell the judge why the default should not be set aside. It is very important to follow the rules and not interrupt the other side during its turn.

After both of you tell the judge your side and answer any questions the judge has, the judge will make a decision. The judge might rule on the motion later in writing.

Watch the video Going to Court to learn more about what to expect.

After the Hearing

If the judge grants your motion(s), the default(s) will be set aside. You can then file an answer that states your defense(s) to your landlord’s complaint, and the case will proceed from there. There will be another hearing on the matters raised in your landlord’s complaint. You can use the Do-It-Yourself Answer to Eviction Complaint tool to create your answer, and see Going to Court in an Eviction Case.

If the judge does not set aside the possession judgment, your landlord can request an Order of Eviction according to the timeline in the original judgment. If the judge does not set aside the money judgment, you will owe the money awarded to your landlord in the judgment. A judge could grant one of your motions and deny the other. To learn more about what to expect after the hearing, read Eviction after Court is Over.