Bar Remedial Law Practice Exam

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In a scenario where A was declared in default for failure to file an answer, and the motion to set aside is filed after discovery and before receipt of the default order, what is the proper ruling?

The motion must be denied because it was not filed before judgment. Assuming the motion to set aside complies with the rule, it should be granted; such a motion may be filed after discovery even before receipt of the order of default. Such a motion may not be granted under any circumstances. The motion must be certified by the court.

Correct Answer:

Assuming the motion to set aside complies with the rule, it should be granted; such a motion may be filed after discovery even before receipt of the order of default.

Explanation:

When a party is in default, the court can set aside that default if the movant shows a meritorious defense and there was no gross neglect in failing to file an answer. Importantly, the move to set aside can be made even after discovery has begun and even before the party has received the formal default order, as long as the motion complies with the rules and is filed in a timely, proper manner. If these conditions are met, the proper ruling is to grant the motion, permitting the case to proceed on its merits. The fact that discovery is underway or that the default order has not yet been received does not preclude relief.

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