Set Aside Default Judgment in West Virginia Magistrate Court
You missed the 20-day answer deadline and the plaintiff got a default judgment. The court entered an amount against you without a hearing, and now you are wondering whether you can undo it. In many cases, you can — but the window is narrow and the requirements are specific.
The Rule 17 Motion
Under Rule 17 of the Rules of Civil Procedure for Magistrate Courts and W. Va. Code § 50-5-10, a defendant can file a motion to set aside a default judgment. This is your primary tool for reopening a case after a default.
The motion must be filed within 20 calendar days after the judgment was entered — not 20 days after you learned about it, but 20 days from the actual date the magistrate entered the judgment on the court record.
What You Need to Show
Rule 17(e) requires you to demonstrate excusable neglect or unavoidable cause. In practice, this means explaining why you failed to respond in time in a way the court finds reasonable. Examples that courts have considered:
- You never actually received the summons (incorrect address, service on the wrong person)
- A serious medical emergency or hospitalization during the response window
- You were out of state or country and unaware of the lawsuit
- Military deployment
"I forgot" or "I did not think it was important" typically does not qualify. The magistrate has discretion to evaluate whether your circumstances meet the threshold.
Relief may also be granted for newly discovered evidence that was not available during the original response window, or a material mistake in the application of law.
Automatic Stay on Collection
Here is the part most defendants do not know about: filing a timely Rule 17 motion automatically stays execution of the judgment. Under Rule 18A, no collection activity — garnishment, property execution, bank levies — can proceed while the magistrate considers your motion. This stay remains in effect until the court rules.
This makes filing the motion urgent even if you are uncertain whether it will succeed. A pending motion stops the plaintiff from collecting while the court decides.
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The Mandatory Hearing
The magistrate must schedule a formal hearing on your motion and notify all parties. Under established West Virginia case law (including Gates Hudson & Associates, Inc. v. Rosheedia Masszonia, 2024), a court cannot simply deny a motion to set aside without holding a hearing — doing so violates Rule 17(b) procedural requirements.
At the hearing, you explain the circumstances of the default and why you should be allowed to defend the case on its merits. If the magistrate grants the motion, the default judgment is vacated and the case proceeds to trial as if you had answered on time.
The Six-Month Safety Valve
There is one other scenario worth knowing about. Under Rule 15, if you fail to answer within 20 days and the plaintiff does not move for default judgment within six months of the service date, the case is dismissed without prejudice. This means the plaintiff can refile, but no default judgment was entered in the original case.
This is rare — most plaintiffs file for default promptly — but if you are checking on an old case, verify whether a default judgment was actually entered before assuming you need to fight one.
What If You Are Past 20 Days from the Judgment
If more than 20 days have passed since the default judgment was entered, your options narrow significantly. The 20-day period is generally strict, but Rule 20(c) allows an extension when a default judgment followed insufficient service of process or notice of trial. At that point, consulting with Legal Aid of West Virginia (1-866-255-4370) or the West Virginia State Bar Lawyer Referral Service is the practical next step.
The West Virginia Small Claims Response Guide covers the full default judgment process from a defendant's perspective, including what the plaintiff must prove on Form SCA-M429 and how the motion to set aside works step by step.
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