[Code of Federal Regulations]
[Title 17, Volume 1]
[Revised as of April 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 17CFR12.23]

[Page 278-279]
 
              TITLE 17--COMMODITY AND SECURITIES EXCHANGES
 
             CHAPTER I--COMMODITY FUTURES TRADING COMMISSION
 
PART 12_RULES RELATING TO REPARATIONS--Table of Contents
 
Subpart A_General Information and Preliminary Consideration of Pleadings
 
Sec.  12.23  Setting aside of default.

    (a) Default order not final. In order to prevent injustice or for 
good cause shown, and on such conditions as may be appropriate, a non-
final default order (including any award therein)

[[Page 279]]

may be set aside by the official who issued the order.
    (1) Procedure for setting aside non-final default order. Any party 
or person who is the subject of a default order issued pursuant to these 
rules may, at any time before the order becomes final pursuant to Sec.  
12.22(c), file and serve a motion to set aside the default, which shall 
set forth reasons why the act or omission for which the party was 
defaulted was not willful, why there is a reasonable likelihood of 
success for the party's claim or defense if heard on the merits, and why 
no prejudice will be sustained by other parties if the default is set 
aside. A motion to set aside a default order filed pursuant to this 
paragraph (a)(1) shall be decided, in the first instance, by the 
official who issued the default order.
    (2) Review. A denial of a motion to set aside a non-final default 
order by the official who issued the order shall be treated as an 
initial decision, which may be appealed to the Commission in accordance 
with the requirements of Sec.  12.401 of these rules. A grant of a 
motion to set aside a non-final default order may be appealed only in 
accordance with the requirements of Sec.  12.309 of these rules.
    (b) Default order final. A default order that has become final 
pursuant to Sec.  12.22(c) shall not be set aside except upon a motion 
filed and served by the defaulted party showing that he should be 
relieved from the default order because of fraud perpetrated on a 
decisionmaking official or the Commission, mistake, excusable neglect, 
or because the order is void for want of jurisdiction. Such a motion 
shall also show that, if the default order were set aside, there would 
be a reasonable likelihood of success for his claim or defense on the 
merits and that no party would be prejudiced thereby. Motions to set 
aside a final default order for fraud, mistake, or excusable neglect 
shall be filed within one year after the order was issued. All motions 
to set aside default orders shall be decided, in the first instance, by 
the official who issued the order. A denial of a motion to set aside a 
default order that has become final shall be treated as an initial 
decision, which may be appealed to the Commission in accordance with the 
requirements of Sec.  12.401 of these rules. A grant of a motion to set 
aside a final default order shall be treated as a non-final order which 
may be appealed only in accordance with the requirements of Sec.  12.309 
of these rules.