Form 4-704 is the motion to set aside default judgment that appears among the Supreme Court approved forms of the New Mexico Judicial Branch. It is written for use with Magistrate Court Rule 2-702 NMRA and Metropolitan Court Rule 3-702 NMRA, and it asks the court to set aside a default judgment of a stated date. On this page you can fill out the form online on FillingPDF and download or print the completed PDF; the original PDF is published by the New Mexico courts at nmcourts.gov.
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What is 4-704?
Form 4-704, Motion to set aside default judgment, is the New Mexico Judicial Branch form a party files to ask a court to set aside a default judgment entered on a stated date, by stating that the motion is timely, that no appeal was taken, and that a defense exists.
The form is printed for use with Magistrate Court Rule 2-702 NMRA and Metropolitan Court Rule 3-702 NMRA. It carries a court caption (county, court name, case number, plaintiff and defendant) and one short body. In that body the person filing asks the court to set aside the default judgment dated a given day and states:
- that the motion is filed within thirty (30) days from the date of judgment;
- that no appeal has been taken from the judgment;
- that the undersigned has a defense to present; and
- the excuse for being in default, written on three lines.
The motion is signed and dated, and the form ends with a Certificate of Service, which records how a copy of the motion was delivered to the other side. The form is listed with the Supreme Court approved forms on the New Mexico courts' forms library, where civil forms for noncriminal lawsuits are grouped.
Who needs to file 4-704?
A party who is in default in a case in New Mexico Magistrate Court or Metropolitan Court, and who wants the default judgment set aside, uses Form 4-704. The signature line is marked (Plaintiff) (Defendant), so the form is built for whichever party is filing the motion.
Before you use it, check the three statements the form asks you to make:
- the motion is filed within thirty (30) days from the date of judgment;
- no appeal has been taken from the judgment;
- you have a defense to present.
If these statements are not true in your case, the form cannot truthfully be completed as printed. You must also be able to give an excuse for being in default, because the form has lines for it.
The form is printed for use with Magistrate Court Rule 2-702 NMRA and Metropolitan Court Rule 3-702 NMRA. It does not say it applies to other courts. A copy of the motion must be served on the other party or on that party's attorney.
When to file 4-704
The form states that the motion is filed within thirty (30) days from the date of judgment, so the clock runs from the date of the default judgment you are asking the court to set aside. You complete and file the motion within that period, and the form also states that no appeal has been taken from the judgment. The form prints no other deadline. The Certificate of Service records the date on which the copy of the motion was sent or delivered to the other party or attorney, so serve the copy when you file and enter that date.
How to fill out 4-704
Complete the court caption
Enter the county after STATE OF NEW MEXICO, the name of the court, the case number after No., and the names of the Plaintiff and the Defendant.
Enter the default judgment date
In the sentence that begins "The undersigned asks that the court set aside default judgment dated," write the date of the judgment you want set aside.
Confirm the three statements
Check the boxes confirming that the motion is filed within thirty (30) days from date of judgment, that no appeal has been taken, and that you have a defense to present.
Write your excuse for default
Use the lines after "My excuse for being in default is:" to explain why you were in default.
Sign and date the motion
Sign on the signature line marked (Plaintiff) (Defendant), according to the party you are, and enter the date.
Fill in the Certificate of Service
Enter the day, month and year, and name the paper served, such as "answer" or "notice" as the form's example says. Keep the method that applies: mail with name and address, fax, e-mail, or delivery.
Complete the delivery details
For mail, give the recipient's name, address, city, state and zip code. For fax or e-mail, give the recipient, the number or address, and the time and date of transmission. For delivery, describe how it was made.
Sign the Certificate of Service
The person who sends or delivers the paper signs on the line for the signature of the person sending paper and enters the date of signature.
Review and download the completed PDF
Check the caption, judgment date, excuse and service details. Download or print the completed PDF from FillingPDF, then file and serve it as described under How to submit.
How to submit 4-704
The form is a court motion, so it goes into the case it is captioned for, and a copy must be served on the other side. It prints no filing address, portal or fee, so use the channels of the Magistrate Court or Metropolitan Court that entered the judgment.
- Filing: the caption names the county, the court and the case number. Use those details to file the signed motion in that case.
- Service: Use Note 1 requires that a copy of the motion be served on the other party or the other party's attorney. The Certificate of Service lists four methods: first class U.S. mail, postage prepaid; fax; e-mail, only upon agreement of the party to accept electronic service; or delivery, described on the form.
- Proof of service: the person sending the paper signs and dates the Certificate of Service.
FillingPDF lets you fill out and download the PDF; submission follows the court channels described above.
Common mistakes to avoid
- Filing more than thirty (30) days after the date of the default judgment, when the form states the motion is filed within that period.
- Using the form after an appeal has been taken from the judgment, although the form states that no appeal has been taken.
- Leaving the three lines for the excuse for being in default blank.
- Writing the wrong judgment date in the sentence that identifies the default judgment to be set aside.
- Not serving a copy of the motion on the other party or attorney, which Use Note 1 requires.
- Choosing e-mail service without the other party's agreement to accept electronic service.
- Leaving the Certificate of Service unsigned or undated, or not naming the paper served.
- Leaving the court name, county or case number in the caption blank.
Frequently asked questions
What is Form 4-704?
Form 4-704 is the New Mexico Judicial Branch's Motion to set aside default judgment. It asks the court to set aside a default judgment of a stated date and states that the motion is timely, that no appeal was taken, that a defense exists, and the excuse for the default.
How long do I have to file a motion to set aside default judgment on this form?
Within thirty (30) days from the date of judgment. The form has you state that the motion is filed within that period, so count from the date written in the sentence identifying the default judgment.
Which courts is Form 4-704 for?
It is printed for use with Magistrate Court Rule 2-702 NMRA and Metropolitan Court Rule 3-702 NMRA. The caption has blanks for the county and the name of the court, and for the case number.
What do I write as my excuse for being in default?
Write your own reason on the three lines after "My excuse for being in default is:". The form gives no list of acceptable excuses, so state the reason in your own words and briefly.
Do I have to serve the other party with my motion?
Yes. Use Note 1 says a copy of the motion must be served on the other party or the other party's attorney. The Certificate of Service records the method: mail, fax, e-mail, or delivery.
Can I serve the motion by e-mail?
Only if the party has agreed to accept electronic service. The form's e-mail option says the motion was e-mailed upon agreement of the party to accept electronic service, and it asks for the recipient, the e-mail address, and the time and date sent.
Who signs Form 4-704?
The party making the motion signs and dates it; the signature line is marked (Plaintiff) (Defendant). A separate signature on the Certificate of Service is made by the person sending the paper.
Can I fill out Form 4-704 online on FillingPDF?
Yes. You can complete the PDF online on FillingPDF and download or print it. FillingPDF is an independent service and does not file the motion with the court or serve it; you do both through the court's channels.
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