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  1. #1
    Join Date
    Jan 2019
    Location
    Beaverton, Oregon, USA
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    2

    Default Motion to Reconsider Default Judgment Being Set Aside (Oregon)

    My question involves court procedures for the state of: Oregon

    Some background:

    We have a small claims case against our former landlord, who we claim did not provide accounting for our security deposit and prepaid rent, nor returned the balances, within the 31 days provided by statute. We believe we have a strong case to support our claim.

    We attempted to first negotiate, and then filed the claim. The landlord was properly served.

    The landlord failed to respond to the service. We filed a motion for default judgement, and it was granted by the court.

    We sent a letter requesting payment for the judgment. The landlord responded saying we needed to negotiate a mutually agreeable settlement or they would file for relief from the default judgment. We responded saying we were open to receiving a settlement offer from them (we did not state we would settle).

    The landlord filed a motion for relief from the default judgement anyway (we believe before we responded to them). It was granted by the court. If it matters, the motion was granted by a "Circuit Court Judge - Pro Tem".

    Question: Should we have been notified of the motion and offered an opportunity to argue against the motion, or not? We were not notified, the court just granted it and we received a notice that a new document was filed for the case, a copy of the landlord's new response denying our claim, and a notice to appear at a scheduled mediation session.

    We obtained a copy of their motion for relief. It offered a minimal explanation saying "We recently realized that our office made a big mistake about the response and hearing for case #XXXXXX. We would like to file a motion to set aside the default judgment." ORCP 71 & 21 seem to require motions such as this to provide more specifics than that, but I have had little success trying to research this.

    Question: Is that all that is needed to get a default judgment set aside? Shouldn't they have to justify the "big mistake" in some way? Was the judge very lenient, or is this the norm?

    Main Question: Is it worthwhile to file a motion to reconsider the decision to set aside the default judgment? Or should we just move to the mediation session, and perhaps further to a hearing?

    I've been researching that motions to reconsider are rarely used to say the judge made a mistake interpreting rules/statutes, usually they are used only if new information has become available since the ruling. I don't want to waste the court's time or prejudice our position in this case, but I want to make sure the landlord is not let off the hook too easily either. They have been screwing around with us for many months now, I believe trying to wear us down and force us to settle or give up.

    Any thoughts or pointers to advice much appreciated!

  2. #2
    Join Date
    Mar 2013
    Posts
    16,671

    Default Re: Motion to Reconsider Default Judgment Being Set Aside (Oregon)

    It's true that motions should be served on the other party and the other party has an opportunity to respond.

    However, in small claims cases with default judgments, judges generally set aside default judgments as a matter of routine even without a response, simply because they prefer to hear the case on its merits.

    You will get nowhere arguing that the decision was improper or ill advised, you might even tick off the judge.

    You were obviously willing to pursue the case to trial in the first place. Pursue it to trial now.

  3. #3
    Join Date
    Jan 2019
    Location
    Beaverton, Oregon, USA
    Posts
    2

    Default Re: Motion to Reconsider Default Judgment Being Set Aside (Oregon)

    Thanks @adjusterjack that's kind of what I had concluded--small claims is less formal and stringent on the motions, and the court's time is in short supply so don't waste it. It's just unfortunate that the landlord can make us spend extra time and money going through the additional default judgment steps, and then wipe all that out so easily and send us back to square one. The legal process seems to favor the landlord.

  4. #4
    Join Date
    Mar 2013
    Posts
    16,671

    Default Re: Motion to Reconsider Default Judgment Being Set Aside (Oregon)

    It happens.

    Make sure you are able to quote the provisions of the statute word for word when you are in court. Don't expect the judge to look it up. Print it out and take it with you so you can make each point that you want to make.

    https://law.justia.com/codes/oregon/...ection-90.300/

  5. #5

    Default Re: Motion to Reconsider Default Judgment Being Set Aside (Oregon)

    Q: Is it worthwhile to file a motion to reconsider the decision to set aside the default judgment?

    A: You would have some difficulty in citing supporting authority for such a motion as:

    "The so-called `motion for reconsideration' appears neither in the Oregon Rules of Civil Procedure nor in any other Oregon statute". (See: Chief Justice Peterson's opinion in Carter v. U.S. National Bank, 304 Or. 538, 546, 747 P2nd 980 (1987)

    Also "In Schmidling v. Dove, 65 Or. App. 1, 670 P2nd 166; we admonished lawyers not to file 'motions for reconsideration'". (See: Alternative Realty vs. Michaels, 90 Or. App. 280)

  6. #6
    Join Date
    Jul 2018
    Posts
    1,070

    Default Re: Motion to Reconsider Default Judgment Being Set Aside (Oregon)

    Quote Quoting Zzyzx
    View Post
    Question: Should we have been notified of the motion and offered an opportunity to argue against the motion
    Yes.


    Quote Quoting Zzyzx
    View Post
    Is that all that is needed to get a default judgment set aside?
    Given that the court granted the motion, the answer to this question seems obvious.


    Quote Quoting Zzyzx
    View Post
    Shouldn't they have to justify the "big mistake" in some way? Was the judge very lenient, or is this the norm?
    I cannot speak specifically about the particular court in which your case was filed or Oregon courts in general, but courts typically are quite solicitous of setting aside defaults so that cases may be heard on their merits.


    Quote Quoting Zzyzx
    View Post
    Is it worthwhile to file a motion to reconsider the decision to set aside the default judgment? Or should we just move to the mediation session, and perhaps further to a hearing?
    A motion to reconsider probably would not be appropriate (for the reason you mentioned). If, after the case is complete, and if you do not settle, you are unhappy with the result, you may be able to appeal.

    Quote Quoting Zzyzx
    View Post
    The legal process seems to favor the landlord.
    The "legal process" favors having cases heard on their merits. In landlord v. tenant cases, that more often than not benefits the tenant.

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