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In this lesson, you will learn all about default judgment, how to react to it as the serving and receiving party, and what it means for your case with every possible outcome.
DEFAULT JUDGMENT – Can occur when the defendant fails to either file a complaint or make a court appearance.
A default judgment happens at the very start of the litigation.
Example – Marc\’s Car:
- Marc bought a car that needed constant repairs.
- The last time the car broke down, he left it on the side of the road.
- Marc stopped making payments.
- Marc also ignored the complaint when it arrived.
What can Marc do?:
- Do nothing.
- File for bankruptcy.
- Settle the debt.
- Ask for a set-aside.
- Open up the default.
When requesting or moving for a default, the moving party can:
- Wait the allotted time.
- Move to declare a default.
- Move for default judgment with prima facie evidence justifying judgment.
When getting or opposing a default, the opposing party can:
- Pay to open the default.
- Show evidence of a defense.
- Show mistakes, surprises, etc.
- Show due diligence after notice.
- Show no hardship to the plaintiff.
Transcript
Let\’s talk about default judgment.
If you\’re a defendant, very few motions and litigation will shoot your case through the heart like a default judgment.
In fact, the vast majority of defendants in certain cases lose at this point in litigation.
For the plaintiff, a default judgment is great. If you\’ve done everything right from the filing of your complaint to the service of summons to getting a default declared, Well, you can go collect your judgment.
A default judgment is one where the defendant after being served with the lawsuit didn\’t respond within the twenty or so days allowed by the court. They either didn\’t submit a written response or didn\’t appear in court as summoned.
The judge enters the default judgment, giving the plaintiff everything they ask for.
Well, when does this happen?
A default judgment comes at the very beginning of litigation, and so its requirements are fairly simple.
The defendant is missing in action.
The plaintiff files the motion and gives his judgment.
Let\’s look at a sample case.
Mark was sued for failure to pay on a used car he no longer owned.
He\’d made three years of monthly payments on the car, which needed almost constant repairs.
The last time it broke down, he kicked it, left it on the side of the road, and he stopped paying on it. He was sick of that car and the used car dealership that had sold him that clunker.
So when he received the complaint in the summons, He laid it aside barely reading it.
Mark\’s situation is not unusual.
People often have served a complaint and don\’t know what to do, so they do nothing.
Well, in Mark\’s case, a default judgment was entered against him.
Is it the end for Mark? Is he stuck with it?
No. Believe it or not, he may have some options.
Well, what happens now?
Mark can dig in his heels, do nothing, and wait for the plaintiff to attempt to collect the debt.
But a debt collector can garnish Mark\’s wages and even his bank accounts and put bad things on his credit record.
Well, luckily, Mark has other options on a judgment of default. He can file bankruptcy and face all his bill collectors with his pockets empty.
Another option is to try to settle the debt for a lesser amount than the default judgment.
This could be difficult.
Why would a creditor settle for a lesser amount after they\’ve already gotten a favorable judgment?
Well, after some thought, Mark decides he wants to fight.
He can move to void, vacate, or set aside the judgment.
In which case, he may have an opportunity to respond to the complaint.
But Mark has already wasted precious time.
When he decides what to do, he must do it quickly, or the wheels of justice will continue to move in favor of the plaintiff.
Let\’s step back a moment and talk about how to get a default judgment and how to oppose one.
If you are at the moving party, that means you\’re the plaintiff.
You\’ll wait the allotted time for the defender to appear.
If the defendant does not appear in person or respond in writing, move for declaration of default.
A declaration of default is entered upon request by the clerk whenever a defendant has not appeared within the allotted time.
And so after the clerk declares a default, you will move for judgment against the defendant based on that default.
In your motion, provide evidence that would justify an award of a judgment to you. That\’s called a prima fosse case.
It simply suggests the defendant\’s liability.
Now if you are opposing or seeking to vacate a default judgment, That means you\’re the defendant here.
Well, there are a couple of situations.
If a default has been declared against you, but no judgment, In many states, you can simply pay a fee to open the default to start the case over.
But if a default judgment has been answered against you, things may be more complicated.
You\’ll need to show that there is substantial evidence of a defense that is had you responded in time you would have had an opportunity to defend yourself. But after a default judgment, you\’ll need to show some evidence of that.
You also need to show that your failure to appear on time was due to a mistake, surprise Excusable neglect, there may be other reasons provided in your rules of civil procedure.
You also must show that you acted with due diligence after receiving notice of the default judgment.
So you didn\’t wait six months or six years after the judgment occurred, to act.
And finally, you must show that no substantial hardship will result to the plaintiff. If the default judgment they\’ve been granted is vacated.
That is they\’ll still have the opportunity, the same opportunity to file their claim, and process their claim.
Now jurisdictions vary greatly here. What you have to prove varies in every state, just know that there are usually options in each state.
The important thing is to be aware that a default itself is different than a default judgment. Again, a default is declared by the clerk, A default judgment is entered by a judge.
Back to our example, Mark\’s goal is to vacate the default judgment against him. So what are his next steps?
Remember, the motion for default judgment is filed near the very beginning of a case.
As a courtroom five member, Mark has no history stored in his account. That he can draw on.
But Mark first selects the notes tool simply to write down all of the information he can remember about the car.
Next, he takes the first course. That\’s the civil litigation one on one course.
Where he learns the various stages of litigation and understands his situation better.
The next stop for Mark is the laws tool.
In the case law database, he types in keywords like remove, default judgment.
After reviewing some opinions, he finds cases that identify the statute he needs, along with the proper wording.
He next clicks on the search statutes tab there in the laws tool. He finds his jurisdiction, and follows instructions to locate the statute on defaults.
Now the statute he finds, and the cases he\’s found, tell him that he must move to open the default.
And to do that, he must pay a one hundred dollar fee within fifteen days of the judgment. And then moved to vacate it.
Mark is relieved he\’s within the fifteen day time limit.
So he uses the task tool to set his motion\’s due date and to send himself reminders to file his motion.
The next stop is the documents tool. He chooses a template to draft his motion to vacate default judgment.
After finishing the first draft, he takes a second course at courtroom five. That\’s the introductory legal skills course.
That course helps him get ready for court, gives him some confidence, and helps him better craft his motion to vacate the default judgment.
Mark updates the motion based on what he\’s learned. When he completes the template, he prints out a PDF version of it and signs it.
Now in Mark\’s jurisdiction, he doesn\’t need to set or attend a hearing on a motion like this.
But he sends the judge a proposed order using a courtroom five document template.
The judge signs and enters Mark\’s proposed order, vacating the default judgment.
And Mark is back at square one as though the complaint had just been filed.