NC Small Claims Motion to Set Aside or Vacate a Judgment

When You Need to Undo a Magistrate Judgment

Maybe you missed the hearing because you never received the summons. Maybe you were in the hospital on court day. Maybe the magistrate entered a judgment and you just found out about it. If a North Carolina magistrate rendered a judgment against you and you believe it should not stand, a motion to set aside under Rule 60(b) of the NC Rules of Civil Procedure may be available, particularly after the appeal period has passed.

This is separate from an appeal. An appeal gives you a new trial in District Court, with oral notice in open court or a written-notice deadline of 10 calendar days when judgment is not announced there. A Rule 60(b) motion asks the court to reopen the original case and has different grounds and timing rules.

How NC Small Claims Judgments Work When You Do Not Appear

First, understand what happened procedurally. In North Carolina small claims court, a judgment entered when you did not show up is not the same as a default judgment in District or Superior Court.

Under N.C.G.S. § 7A-218 and § 7A-222, when a defendant fails to appear at a magistrate hearing, the magistrate cannot simply enter judgment based on the complaint alone. The plaintiff must still take the witness stand, testify under oath, present evidence, and prove every element of their claim by the greater weight of the evidence. If the plaintiff fails to carry that burden, the magistrate is supposed to dismiss the case — even without you there.

This distinction matters because the standard Rule 55 "default judgment" procedures do not apply to magistrate decisions. The relief mechanism is Rule 60(b), not Rule 55(c).

Rule 60(b) Grounds for Setting Aside

N.C.G.S. § 7A-228(a) and Rule 60(b) provide the framework. The grounds you can raise depend on who hears the motion:

Before a magistrate (if authorized by the Chief District Court Judge):

• Rule 60(b)(1): Mistake, inadvertence, surprise, or excusable neglect

Not every county authorizes magistrates to hear these motions. If the Chief District Court Judge has not issued an administrative order granting magistrates this authority, your motion goes to a District Court judge.

Before a District Court judge (always available):

• (b)(1): Mistake, inadvertence, surprise, or excusable neglect
• (b)(2): Newly discovered evidence that could not have been found in time
• (b)(3): Fraud, misrepresentation, or misconduct by the opposing party
• (b)(4): The judgment is void (for example, you were never properly served)
• (b)(5): The judgment has been satisfied, released, or discharged
• (b)(6): Any other reason justifying relief (the catch-all)

For a missed hearing, (b)(1) — excusable neglect may apply when the absence resulted from a documented emergency, such as a medical crisis or death in the family. If you did not receive the summons because service was improper, consider (b)(4) instead. Simply forgetting or deciding not to go is generally not enough.

If you were not properly served, (b)(4) — void judgment may be a ground for relief. The court must determine the service facts, and you should seek relief within a reasonable time.

Deadlines

A Rule 60(b)(1) motion must be filed within a reasonable time and no later than one year after the judgment was entered. Motions under (b)(2) and (b)(3) share the same one-year limit.

Motions under (b)(4) through (b)(6) must be filed within a reasonable time. These subsections do not have the one-year cap that applies to motions under (b)(1), (b)(2), and (b)(3), but you should act promptly once you learn about the judgment.

Filing the Motion

There is no standard AOC form specifically for a Rule 60(b) motion in small claims court. Draft a written motion that includes:

1. The court caption (State of North Carolina, County, District Court Division — Small Claims, party names, case file number)
2. The specific Rule 60(b) subsection you are invoking
3. A factual statement explaining why the judgment should be set aside
4. Your signature, address, phone number, and email

File the motion with the Clerk of Superior Court in the county where the judgment was entered. Serve a copy on the plaintiff by first-class mail or hand delivery under Rule 5.

What Happens If the Motion Is Granted

If the magistrate or judge grants your motion, the original judgment is vacated and the case is set for a new hearing. You get another chance to appear and present your defense.

One important detail: filing a Rule 60(b) motion does not automatically stay execution of the judgment. If the plaintiff has already begun collection efforts (a writ of execution, a bank levy), the motion alone does not freeze those actions. You would need to request a separate stay order from the court.

Motion to Set Aside vs. Appeal: Which One?

If you are still in time to appeal — by announcing it in open court or filing written notice within the 10-calendar-day deadline when required — an appeal to District Court is usually the better path. You have a right to a trial de novo if you meet the notice and cost requirements; a perfected appeal from a money judgment automatically stays enforcement. A Rule 60(b) motion requires you to prove grounds and is discretionary.

Use Rule 60(b) when an appeal is no longer available or when you have a ground for relief under one of its subsections. The subsection and timing rules both matter.

If you are navigating any part of this process — from your first response to a summons through a motion to set aside — our NC small claims response guide covers the full procedural timeline and your options at each stage.

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