Setting Aside a Consent Judgment in an Eviction Case

If you and your landlord come to an agreement about your eviction, you can present it to a judge. An example of such an agreement is a consent judgment. If the judge signs it, it ends the case. If you later find out you had rights and defenses you could have used to avoid eviction, you may be able to have the judgment set aside using a specific court rule: MCR 4.201(I). You must meet certain requirements to have a consent judgment set aside using this rule. There is a three-day time limit for this process. Read the “The Requirements” section below to learn more.

The process this article describes is the most common way for a tenant to try to set aside a consent judgment in an eviction case they entered into without a lawyer. However, a tenant could also file a motion for relief from judgment. This motion is available to a party in any type of court case. There is no three-day limit for filing a motion for relief from judgment. However, this motion is more complex. If you would like to learn more about a motion for relief from judgment, you may want to speak with a lawyer. Use the Guide to Legal Help to find lawyers in your area.

The Requirements

To use this process to set aside a consent judgment you must meet all of the following requirements:

• You did not have a lawyer when you signed the consent judgment;
• You did not know about your rights when you signed the consent judgment; and
• You file your motion to set aside the consent judgment within three business days from when the judge signed it.

As a practical matter, you also need a defense or a counterclaim that could change the outcome of the case.

This court rule was created to protect a person who did not have a lawyer and did not know about their rights and defenses to eviction when they signed a consent judgment. The first requirement is that you must not have had a lawyer when you signed the consent judgment. If you had a lawyer, you cannot use this process.

You must also show a judge that you did not know your rights, you misunderstood them, or did not realize you were giving them up when you signed the agreement. To learn more about these rights, read the “Your Rights in Eviction” section below.

You only have three business days to file a motion to set aside the consent judgment after it was entered. You can use the Do-It-Yourself Motion to Set Aside Consent Judgment tool (coming soon) to see if you qualify to have the judgment set aside. If you qualify, the tool will create your motion.

Even if you have the motion, the process of setting aside a consent judgment can be complex. You may also want to talk to a lawyer to help you. Use the Guide to Legal Help to find lawyers and legal services near you.

Filing Your Motion and Going to Court

You must file your motion within three business days of when the judgment was entered. If you want to find a lawyer to help you, you should contact one immediately. You should tell the lawyer about the judgment and deadline when you first speak to them.

When you file your motion, the court clerk will schedule a hearing date. After you file your motion, send a copy of it to your landlord. If your landlord has a lawyer, send it to your landlord’s lawyer instead.

Before your hearing date, you should review the reasons why the consent judgment should be set aside and be prepared to explain them to the judge. You should also prepare any defenses and counterclaims to the eviction you may have. Getting the consent judgment set aside does not mean you won’t be evicted. It means you can now answer your landlord’s eviction complaint with available defenses and counterclaims that might change the outcome. Having your defenses or counterclaims ready could help show the judge the consent judgment really should be set aside.

When you go to court, the judge should let you speak first because you filed the motion. After you speak, the judge will let your landlord or your landlord’s lawyer respond. To learn more, read What to Expect When You Go to Court.

Your Rights in Eviction

To learn about your general rights and responsibilities as a tenant, read Tenant Rights and Responsibilities. One important right you may have given up is your right to talk to and get advice from a lawyer about your eviction before the consent judgment was entered. You are not entitled to a free lawyer in your eviction case, but you do have a right to talk to one about your case.

A lawyer could advise you about defenses and counterclaims to eviction, which are other rights you may have given up with a consent judgment. The only real reason to set aside a consent judgment is so you can raise defenses and counterclaims and change the outcome of your case. Be sure you can explain those in your motion. To learn more, read Common Defenses and Counterclaims in Eviction Cases.

If you have a disability, you may be entitled to certain housing accommodations, which can protect you from eviction. To learn more about what types of disabilities are protected in Michigan, read Discrimination in Rental Housing and Rights of Tenants with Disabilities.

Do I Need a Lawyer to Set Aside My Consent Judgment?

The purpose of the court rule that allows you to set aside a consent judgment is to protect people who did not have a lawyer when they signed a consent judgment, and as a result did not raise defenses and counterclaims. This process protects people without a lawyer who did not know their rights, misunderstood them, or did not realize they were giving up those rights. In order to have your consent judgment set aside, you will need to show that you now know about and understand your rights and you want to exercise them. To learn more about these rights, read the “Your Rights in Eviction” section above.

The easiest and most common way to learn about your rights is by speaking to lawyer about them. You may qualify for free legal help from your local legal services office. However, if you found resources after the consent judgment on your own, like on Michigan Legal Help, that could be a way you learned about them without having to speak with a lawyer. Because setting aside a consent judgment can be complex, you may want to speak with a lawyer before you file your motion.

Use the Guide to Legal Help to find lawyers near you. If you have low income, you may qualify for a free lawyer from your local legal services office. Even if they are not able to represent you in court, they could offer you advice and other help, such as helping you draft your motion. The Guide will screen you to see if you are eligible for free legal services.

The Order

The judge will issue an order on your motion after they hear from you and your landlord. The judge will either grant your motion or deny it. If the judge grants your motion, it will be as if the consent judgment never happened. Often, you will need to file an answer to your landlord’s eviction complaint with defenses and counterclaims, and you will need to go to court again. However, you should be ready at the motion hearing to answer the eviction complaint with defenses and counterclaims you have just in case the judge wants to take care of things then.  To learn about going to court, read Going to Court in an Eviction Case.

If the judge denies your motion, the consent judgment stands and you must follow what it says. You may be able to appeal the judge’s decision, but the process is very complex. There are strict timelines in eviction cases that affect the appeals process. How judges interpret these timelines can vary greatly.

If you would like to contact a lawyer for help, use the Guide to Legal Help to find lawyers near you. If you have low income, you may qualify for a free lawyer from your local legal services office. Even if they are not able to represent in court, they could offer you advice and other help. The Guide will screen you to see if you are eligible for free legal services.