Default Judgments in Civil Lawsuits

By Neil Goodman | Reviewed by David Goguen, J.D., University of San Francisco

School of Law
A default judgment could spell the end of a lawsuit, or the defendant could
have time to ask that the judgment be "set aside" so the case can proceed.
Get the details here.
No matter which side of a civil case youre on, its important to understand what a
default judgment means to yourlawsuit, and what happens next. In this article, well
explain the basics of default judgments: what they are, when and how defendants can
set them aside, issues related to collection, and more.
What is a Default Judgment?
In a civil lawsuit, a defendant who does not respond to the suit papers in a timely
manner is considered in default. When the plaintiff makes the required showing of
default and offers proof to the court of the amount of money owed, the court will issue a
default judgment in the plaintiff's favor. (Learn more about Parties in a Civil Lawsuit.)
At that point, the plaintiff will be entitled to pursue enforcement of the default judgment
in accordance with the procedures of the particular jurisdiction where it was obtained -the rules of the county branch of the states civil court, for example.
Typically, a court's rules governing enforcement of default judgments include procedures
for wage garnishments, attachment of bank accounts and seizure of assets. The plaintif
can usually pursue more than one of these enforcement mechanisms simultaneously.
"Setting Aside" a Default Judgment
In most jurisdictions, the defendant will have a prescribed period within which to ask the
court to set the default judgment aside, on good cause shown. In California, the
defendant typically has 30 days to make this kind of motion, starting from the date on
which the court clerk mailed the Notice of Entry of Judgment. In Florida, there is no
specific timeline, but the party requesting relief from the default judgment must do so
with due diligence.
If the defendant does not seek this relief, or if the defendant is unsuccessful in seeking it,
the plaintiff will then be free to attempt to collect the judgment by any lawful means
available. Typically, a court's rules governing enforcement of judgments include
procedures for wage garnishments, attachment of bank accounts and seizure of assets.
The plaintiff can usually pursue more than one of these enforcement mechanisms
simultaneously, and the costs incurred in doing so are usually added to the judgment
amount.
Collecting on a Default Judgment
As an aid to plaintiffs who are confronted with the challenge of collecting the money
owed to them, courts permit default judgment holders to discover facts surrounding the
defendant's employment, bank accounts and other assets. In a proceeding known as a
creditor's exam, the defendant is required to testify under oath and produce
documentation about these matters. Some courts also permit the plaintiff to seek an
order freezing the defendant's assets to prevent fraudulent transfers that would frustrate
collection efforts. The defendant's failure to comply with court orders and subpoenas
issued as part of these proceedings may lead to a finding of contempt of court, which
means possible fines and jail time.
Once the plaintiff learns where the defendant works, where the defendant banks, and
what assets are owned in the defendant's name, decisions can then be made as to how
the available enforcement tools can best be utilized. For example, if the defendant is a
wage earner who receives a regular paycheck, the plaintiff can issue wage garnishments

and receive a certain percentage of the defendant's wages. If the plaintiff is able to
obtain information about the defendant's bank accounts, garnishment and attachment
proceedings can be initiated to reach the assets in these accounts. If the defendant owns
vehicles, non-exempt real estate or other items of real or personal property, this property
will be subject to seizure by the local law enforcement authorities. Once it is sold, usually
at a public auction, the sale proceeds will be available to help satisfy the judgment
amount owed.
It is often said that a judgment is only worth the paper it is written on. In many cases,
litigants obtain judgments that are difficult (if not impossible)to collect because the
defendant either has no assets or has effectively shielded those assets from the reach of
creditors. But an understanding of collection options -- and a willingness to spend the
time and resources to utilize those options -- will greatly enhance your chance of
recovering some, if not all, of the default judgment amount.
Like other kinds of judgments, default judgments will be enforceable for a period of years
set by law. Many jurisdictions permit the renewal of judgments that are about to expire,
providing additional time for the plaintiff to pursue collection remedies. Unless the
defendant tries to discharge the judgment debt by filing for bankruptcy, the cloud of
court-authorized actions to enforce the default judgment may well hang over the
defendant's head for decades.
http://research.lawyers.com/default-judgments-in-civil-lawsuits.html

In law, default refers to the failure of a party to do something that the law required him
to do. A default occurs when a person who is required to be present before the court of
law for some proceedings before it, fails to appear in court.
Entry of default refers to the process where the person making a claim in a case makes a
request before a court of law stating that the party against whom they have made a
claim have failed to furnish any meaningful response to the claimants pleadings within
the time allowed for that. The court may immediately enter a judgment on the claim or
may direct the claimant to file a notice of intent to take the default judgment and serve it
on the unresponsive party. If the other party does not oppose the notice of intent or does
not provide adequate justification for his delay or lack of response in the matter before
the court, the court grants a default judgment favoring the claimant/ plaintiff. Entry of
Default in the US District Courts is governed by Rule 55 of the Federal Rules of Civil
Procedure.
USCS Fed Rules Civ Proc R 55 reads as follows:
Rule 55. Default; Default Judgment [Caution: For amendments effective December 1,
2009, see prospective amendment note to this rule.]
(a) Entering a Default. When a party against whom a judgment for affirmative relief is
sought has failed to plead or otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party's default.
(b) Entering a Default Judgment.
(1) By the Clerk. If the plaintiff's claim is for a sum certain or a sum that can be made
certain by computation, the clerk--on the plaintiff's request, with an affidavit showing the
amount due--must enter judgment for that amount and costs against a defendant who
has been defaulted for not appearing and who is neither a minor nor an incompetent
person.
(2) By the Court. In all other cases, the party must apply for a default judgment. A
default judgment may be entered against a minor or incompetent person only if
represented by a general guardian, conservator, or other like fiduciary who has
appeared. If the party against whom a default judgment is sought has appeared
personally or by a representative, that party or its representative must be served with
written notice of the application at least 3 days before the hearing. The court may
conduct hearings or make referrals--preserving any federal statutory right to a jury trial-when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B)
determine the amount of damages; (C) establish the truth of any allegation by evidence;
or (D) investigate any other matter.

(c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of
default for good cause, and it may set aside a default judgment under Rule 60(b).
(d) Judgment Against the United States. A default judgment may be entered against the
United States, its officers, or its agencies only if the claimant establishes a claim or right
to relief by evidence that satisfies the court.

Civil Procedure Default Law & Legal Definition In legal terminology, default refers
to a failure to fulfill a legal obligation or duty. For example, a default by a borrower under
a loan agreement permits a lender to take certain actions in response to the default.
Default is often used to refer to the non-appearance of the defendant within the time
prescribed by law to defend himself. It also signifies the non-appearance of the plaintiff
to prosecute his claim. In such cases, a judgment will be rendered in favor of the nondefaulting party automatically, which is called a "default judgment".
Additional Civil Procedure Default Resources
View Civil Procedure Forms - Download Civil Procedure Default Forms in Minutes.
Learn more at civilprocedure.USLegal.com - More Civil Procedure Information.
Affidavit Stating Facts on Information and Belief
This form is an affidavit in which the affiant is swearing to facts based on information and
belief.
Application for Entry of Default - Affidavit - Motion - Entry of Default - Default judgment
Description
This form is a sample Application for Entry of Default and a Supporting Affidavit. The
plaintiff places before the court an application for entry of default against the defendant.
The form also contains an affidavit which supports the allegations made by the plaintiff.
Georgia Motion for Default Judgment
Description
A motion is a written request to the court to take a certain action. The court will either
grant or deny the motion in accordance with law and court rules. This document, a
Motion for Default Judgment, is a model motion requesting the named action from the
court (or a general motion form). Adapt to fit your facts and circumstances. Available for
download now in standard format(s). USLF control no. GA-EB706
VACATING A DEFAULT JUDGMENT
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This guide provides general information for Californians who are facing debt collection
lawsuits in the Superior Courts of California. It does not apply to courts outside the state
of California. It is not a substitute for obtaining legal advice in your individual case.
What is a judgment? A judgment is the court's written, final decision in the case. If the
judgment is against you, it will state how much money you owe to the plaintiff.
What is a judgment creditor? A judgment creditor is a creditor or debt buyer that
has obtained a judgment against a defendant.
What is a default judgment? When a defendant fails to file a written Answer with the
court (defaults) the court will issue a judgment against the defendant. A judgment
issued under those circumstances is commonly known as a default judgment. The
court usually awards the plaintiff the amount demanded in the complaint, plus interest
and court costs. The court usually awards attorneys' fees on a default judgment based of
a schedule published by the court.
Can I re-open a default judgment? Yes. Under certain circumstances, it is possible to
vacate (re-open) a default judgment. The court has a special procedure for determining
whether to vacate a default judgment. The procedure is relatively straightforward, but
often requires a noticed motion and a hearing before the judge.
What are the criteria for vacating a default judgment? There are two main
reasons that a court will vacate a default judgment: (1) excusable default and (2) lack of
personal jurisdiction. These reasons are explained below.
Excusable Default Excusable default is the most common reason for vacating a default
judgment. It has two parts: (1) a reasonable excuse for not filing an Answer within the 30
day time; and (2) a meritorious defense (a good defense). There is a time limit for
moving to vacate a judgment because of excusable default 180 days from the entry of
the Judgment. (If you were never served with a Notice of Entry of the Judgment, the time
limit is extended to 2 years.)
Common examples of a reasonable excuse: The most common example of a reasonable
excuse is that you did not receive the Summons. Other reasonable excuses are that at
the time you received the Summons you were out of town, ill, incarcerated, or that you
could not answer the Summons for some other good reason. You would also have a
reasonable excuse if, in response to the Summons, you telephoned the attorneys for the
plaintiff and they told you not to bother filing an Answer.
Sometimes people do not respond to the Summons because they do not understand
what it is. This is not normally considered to be a reasonable excuse; however, some
judges will accept it.
Common examples of a meritorious defense: A defense is a reason why you don't owe
the money, not a reason why you can't pay. For example, you would like to use the
defense of identity theft or statute of limitations. For a list of possible defenses,
see Common Defenses to Debt Collection Lawsuits. You can also simply dispute the
amount of the debt. Disputing the amount of the debt, combined with improper service,
is a sufficient (and very common) reason for the court to grant an order vacating the
default judgment.
Lack of Personal Jurisdiction (Improper Service) The court can also vacate a
default judgment if you were not properly served with a Summons. There are advantages
and disadvantages to trying to vacate a judgment on the grounds of improper service.
The main advantage is that there is no time limit for seeking to vacate a judgment on
the grounds of lack of jurisdiction. Also, if you seek to vacate a judgment because of
improper service, you do not need to cite a meritorious defense (or any defense). The

disadvantage of seeking to vacate a judgment on the grounds of improper service is that

you have the burden of proving the bad service, which you must do at a hearing before
the judge. Proving improper service can be difficult depending on the facts of your case.
How do I vacate a default judgment? First, find out which court issued the judgment.
(In a debt collection case, you will most likely need to go to the Civil Division of the
Superior Court in the county where you live.) Next, go to the court that issued the
judgment and find the civil court clerk's office. There, tell the clerk that you want a copy
of the entire court file for your case. The clerk may give you a pre-printed document
request form to fill out. Once you have obtained a complete copy of the court file for your
case, contact one of our attorneys to review your case without cost or obligation.
What happens at the court hearing? At the court hearing, you will most likely find
yourself sitting in a courtroom with a number of other people who are in the same
position as you. The court clerk will call out your name, and you should answer clearly.
The attorney for the plaintiff may call out your name as well. The plaintiff's attorney
might consent to vacating the judgment or ask whether you want to make a settlement
agreement. No matter what the plaintiff's attorney says to you, it is important that you
focus on making sure that the default judgment is vacated. If the plaintiff's attorney does
not consent to vacating the judgment, you should ask to go before the judge. When you
are before the judge, you must focus on the arguments you made in your Motion to
Vacate. Simply keep repeating (1) your good reason for failing to file an Answer; and (2)
your defense in the case. As long as you have a reasonable excuse and a meritorious
defense, the judge should grant the Motion to Vacate and vacate the judgment against
you. If you want to argue lack of jurisdiction because you were not served with a
Summons, you must do it at this time.
What if I have a frozen bank account or wage garnishment? Once the default
judgment is vacated, the plaintiff must release your bank account and cancel the wage
garnishment. This is included in the court's order vacating the judgment.
If the judgment is vacated, does that mean the case is over? Probably not. In
most cases, even though the judgment is vacated, you still have to defend the case.
That means you have to file an Answer and attend at least one additional court date.
http://sjconsumerlaw.com/lawsuit-defense/vacating-a-default-judgment
http://secure.uslegalforms.com/cgi-bin/forms/continue-category.pl?
nGbmgmc6tx4pANeheV74eh6tye6tQK2mBhC4KhCeh6tGbpA74hC6tye6t6DehpA42mKoo6DAhxWqReS
http://jux.law/can-i-file-a-default-judgment-motion-if-the-answer-is-served-late/

Can I File a Default Judgment Motion if the Answer is Served Late?

Home Litigation Can I File a Default Judgment Motion if the Answer is Served Late?
In general, a party should not file a motion for default judgment merely because the
opposing partys pleading was untimely served or filed. Attorneys who are new to filing a
motion for default judgment may find the following helpful in determining their options.
An attorney asked this question:
If a defendant is untimely in serving or filing an Answer to our Complaint, is it
appropriate to file a motion for default judgment? Would a judge grant the motion for

default judgment? Also, does the Plaintiff filing a motion for default judgment have a
duty to notify opposing counsel that the Defendant is in default prior to filing the motion?
One Minnesota litigation attorney answered:
Here is my experience, which I believe represents the general practice in Minnesota.
I have never seen default granted if an Answer was served, even if the Answer was really
late. The law strongly favors resolution on the merits.
If the answer is late, the only issue for the court is whether to award fees for the default
motion. Judges typically award fees for a default motion when the motion had to be
brought to get the defendant to Answer. If you file a motion for default judgment after
receiving a late Answer, you will lose the motion and you probably will not recover fees.
Further, the judge might be annoyed at you for bringing a motion for default after you
received an untimely Answer.
Another Minnesota litigation attorney answered:
You can file a motion for default after receiving an untimely Answer, but you will probably
lose and the judge may yell at you.
Rule 55.01 of the Minnesota Rules of Civil Procedure is helpful:
When a party against whom a judgment for affirmative relief is sought has failed to plead
or otherwise defend within the time allowed therefor by these rules or by statute, and
that fact is made to appear by affidavit, judgment by default shall be entered against
that party as follows: . . . (b) In all other cases, the party entitled to a judgment by
default shall apply to the court therefor. If a party against whom judgment is sought has
appeared in the action, that party shall be served with written notice of the application
for judgment at least three days prior to the hearing on such application.
Note Howard v. Frondell:
Finally, appellants contend the judgment should be vacated because they did not receive
notice of Howards application for default and were not notified of the hearing. A party
need only be served with written notice of the application for a default judgment if it has
appeared in the action. Appellants claim that Hollenders letter to Howards attorney
requesting an extension constitutes an appearance. Under the rules, however, a party is
deemed to have made an appearance when it serves or files any paper in the
proceeding.
Minn.R.Civ.P. 5.01. Because appellants had not filed or served any paper at the time of
the application for default, they *209 were not entitled to notice. We conclude that the
trial court did not abuse its discretion in refusing to vacate the default judgment.
Note section III(F)(2) of the Professionalism Aspirations adopted by Minnesota State Bar
Association and approved by the Minnesota Supreme Court: We will not cause a default

or dismissal to be entered, when we know the identity of an opposing counsel, without

first making a good faith attempt to inquire about the counsels intention to proceed.
In conclusion, Minnesota courts have a strong preference for deciding cases on the
merits, and default judgment is only available where an opposing party has been served
a pleading and failed to serve or file a responsive pleading.
Default judgment
From Wikipedia, the free encyclopedia
Default judgment is a binding judgment in favor of either party based on some failure
to take action by the other party. Most often, it is a judgment in favor of a plaintiff when
the defendant has not responded to a summons or has failed to appear before a court of
law. The failure to take action is the default. The default judgment is the relief requested
in the party's original petition.[1]
Default can be compared to a forfeit victory in sports. In a civil trial involving damages, a
default judgment will enter the amount of damages pleaded in the original complaint.
Ifproof of damages is required, the court may schedule another hearing on that issue. A
party can have a default judgment vacated, or set aside, by filing a motion, after the
judgment is entered, by showing of a proper excuse.

1Specific jurisdictions
1.1England and Wales

1.1.1How judgment arises

1.1.2Effect of judgment

1.1.3Varying default judgment

1.1.4Setting aside default judgment

1.1.5Practice
1.2United States

1.2.1Entry of default

1.2.2Relief from default

1.2.3Default judgment

1.2.4Relief from default judgment

2Notes

3See also

4External links
Specific jurisdictions[edit]
England and Wales[edit]
How judgment arises[edit]
In England and Wales, a Claimant starts a case by issuing a Claim Form. This either
states a monetary figure on it, together with fixed costs and court fees; alternatively if
the amount cannot be determined, it will be for an amount 'to be assessed'. A Claimant
may not wish to recover money at all, in which case the Claim Form states this.
The Claim Form (together with other documents, known as Particulars of Claim and
a Response Pack) are served on the Defendant.
If the Defendant fails to reply within 14 days of service, the Claimant can apply for
Judgment in Default, either by simply requesting the court's administrative staff enter
judgment filing a request for judgment (which is sufficient for routine cases), or by
making a formal application to the Procedural Judge. The judgment is known
as Judgment in Default of Acknowledgment of Service.
If the Defendant did acknowledge to the court that the papers were served within the 14day period, then the Defendant is given 28 days to take a further step. If the Defendant
fails to do so, again judgment can be entered as above; this time formally known
as Judgment in Default of Defense.
If money is claimed, the Claimant can choose how their judgment will be phrased. Almost
always there will be a request that the money claimed, the court fee, and interest at 8%
on the money from when the Claim Form was issued up until date of judgment, and if
legally represented a fixed contribution to legal costs, be ordered to be paid immediately.
However, the Claimant could simply request the Defendant be ordered to pay at a later
date or in installments.
If money is claimed but the amount is not fixed, a Disposal Hearing is listed to determine
the amount of money.
If any other remedy is claimed, the Claimant would have had to apply to the procedural
judge for the Judgment in Default, and therefore the Judge will determine what happens
next.
Judgments in Default are covered by Part 12 of the Civil Procedure Rules 1998

Efect of judgment[edit]
The judgment is binding and failure to comply with it means that enforcement action
could be taken.
The Defendant's name is also entered onto a register (although if they pay within a
month it will be removed) which is open to everyone, and is particularly used to vet the
credit-worthiness of people.
In the case of Masters -v- Leaver[1999]EWCA Civ 2016 [1] it was held that a judgment in
default means just that - it is a judgment obtained due to default. It does not mean that
the court has agreed with what was claimed, or favors one or other case. Therefore if the
issue arises again, the Defendant is not prevented from arguing the facts again.
That case also refers to Texas and US law being similar, although of course the English
Court has no jurisdiction to determine that point.
Varying default judgment[edit]
If a Defendant accepts the judgment, and the amount, but is unable to pay, the
Defendant may apply to Vary the judgment. A process is gone through whereby the
Defendant states how soon they can afford to pay the debt (usually monthly
installments) and the Claimant can either accept this, or request another amount. The
court's staff will suggest a figure and ultimately a District Judge (N.B. In England and
Wales a District Judge is one of the lowest levels of judge) will make a decision. The
decision is binding, even if it means the Claimant is out of their money for a considerable
amount of time, and even if interest cannot be charged on the outstanding sum (which it
usually can't).
Setting aside default judgment[edit]
There are three grounds for canceling ('setting aside') the Default judgment.

The documents were not served correctly. The Defendant has to show that the
documents were not served, which obviously would explain why the Claimant
had ability to enter judgment. This has to be done by way of an 'Application on
Notice' (motion). Evidence has to be shown to the procedural judge. This used
to be called setting aside an 'irregular judgment'

There is some good reason why judgment in default should be set aside. This
covers any situation but is commonly used when service was effected properly,
but still did not come to the attention of the Defendant (perhaps they were on a
long vacation, or in hospital). Many jurisdictions also require the defendant to
proffer a meritorious defense before vacating the default judgment.

The Claimant entered judgment when they were not entitled so to do. For
example, perhaps a Defense was filed in time, but the Claimant still attempts to
enter judgment. The court staff usually check for things like this, but
occasionally things slip through the net. It used to be the obligation of

the Claimant to apply to set aside their own judgment in these circumstances,
but this obligation has recently (in 2005) been dropped.
In the last circumstance of the above, the Defendant can get the judgment
canceled as of right. Otherwise, the Defendant needs to show what their
Defense will be, and if the court thinks that the defendant is effectively 'stalling
for time' they will not get the judgment set aside.
Practice[edit]
In practice an application to set aside Default Judgment is almost always
granted. This fact is seized upon by so-called 'credit repair' companies. A
person whose credit record is adversely affected by a registered judgment pays
a credit repair company who advises them how to apply to have it set aside.
This is usually of little effect: the judgment will be re-entered very quickly if
there is no actual defense, and there are usually other records which affect a
person's credit rating, not just the judgment.
Pragmatic reasons why judgments are set aside are mainly because on
balance, it is seen as better to give a person who may have a good defense
extra time, and avoid a potentially devastating judgment, and thereby keep a
claimant out of their money for a further two to four weeks, than give the
claimant the benefit.
However the court can, and often does, order conditions to be satisfied, such as
a draft defense being filed first, money paid into court, or similar conditions.
Setting aside Judgment in Default is covered by Part 13 of the Civil Procedure
Rules.
United States[edit]
In the United States the law relating to a default judgment depends upon the
jurisdiction within which the civil action was filed. State courts, United States
Federal Courts, Tribal Courts and many Administrative Agencies have their own
laws and local procedural rules relating to the granting and setting aside of a
default judgment. The Federal Rules of Civil Procedure (Rules 55 and 60) are
the basis for many procedures in default. Federal Rule 37(b)(iii) states that a
balky plaintiff can be found in default and have his case dismissed if the
plaintiff repeatedly fails to comply with things like court orders and discovery
requests.
Entry of default[edit]
Typically, the plaintiff (or cross-complainant, cross-plaintiff, counter-claimant,
counter-plaintiff, third-party plaintiff, etc.)[2] must show that service of
process was effected on the defendant (cross-defendant, counter-defendant,
cross-defendant, third-party defendant, etc.). This is typically achieved by the

filing of an affidavit of service[3] (also known as a proof of service),[4] which

gives enough information to allow the court to confirm that valid service has
been accomplished.[5] Typically the affidavit states, under oath or penalty of
perjury, that service was effected on a named defendant, briefly describes how
it was effected, names the person who made service, and gives the place and
date service was effected.[6] Once the requisite time to respond to the
complaint has passed, the defendant is "in default"; this may be automatic,[7] or
it may require the court clerk to enter the default (which may, in turn, require
that the plaintiff request entry of the default).[8] Some defaults do not take
effect until a set period of time after the clerk acts.[9]The clerk may have to give
the defendant notice of his default, affording a chance to have the default
vacated.[10]
The entry of a default typically prevents the defaulted defendant from litigating
his case or presenting evidence, and may excuse the other parties from giving
him notice of further proceedings.[11]
Relief from default[edit]
A defaulted defendant may move the court from relief from his default,[12] but
usually must do so promptly[13] and must provide "good cause"[14] for his failure
to answer the complaint in time.[15] Often, part of the procedure for relief from
default involves the defendant filing an answer to the complaint.[16] The
defendant relieved from default may also be required to pay any extra costs
and fees incurred by the plaintiff as a result of the delay in the defendant's
filing his answer.[17]
Default judgment[edit]
Often, a certain additional time is required before a default judgment is
permissible, and there may need to be additional notice to the defendant.
Some states do not allow a default judgment to be entered against some
defendants while other defendants are actively litigating the same case;[18] this
is an application of the "one final judgment" rule. Others will allow "several
judgment" (judgment with respect to some defendants at one time, and with
respect to others at another time), at least under some circumstances. [19]
United States law (specifically the Servicemembers Civil Relief Act) significantly
restricts default judgments against members of the military services.[20] The law
requires that before a default judgment may be entered, the plaintiff must
make a certification as to the military service status of the defendant whose
default is sought.[21] This certification may be made in the complaint, in a
document filed with the proof of service, or later. Depending on the
circumstances, other requirements may also apply.[22]
Some jurisdictions allow a clerk of court to enter default judgment in certain
simple cases.[23] These typically involve no exercise of judgment or discretion.

[24]

Otherwise, a default judgment must be issued by a judge, who may require

the plaintiff to present proof of his claims.[25]
Relief from default judgment[edit]
A defendant who has had a default judgment entered against him may move
for an order vacating the judgment.[26] Such a defendant must show "good
cause" for his not having responded to the complaint. However, "good cause" is
rather easy to meet, compared to other instances where "good cause" might be
required. For example, mere "excusable neglect" is, at least at the federal level,
a sufficient reason to vacate default judgments.[27] There are often time limits
and other requirements.[27]
Sewer service, where a default judgement is obtained by fraud by not properly
notifying the defendant that they are being sued, may result in a motion to
vacate the default judgement,[28] a civil lawsuit against a dishonest plaintiff or
process server, or criminal charges for swearing a false affidavit.[29]
A court entertaining a motion to vacate a default judgment often considers the
reasons presented the defendant's failure to respond (such as "excusable
neglect" and the prejudice that might be suffered by the other party).[30] The
court must weigh these factors in light of two competing considerations: the
general preference for cases to be decided "on the merits", and the important
need for "finality in litigation."[31]

Notes[edit]
1. Jump up^ "Legal Definition of default judgment". Legal-glossary.org.
Retrieved 3 Apr 2014.
2. Jump up^ E.g., Md. R. 2-613(a).
3. Jump up^ E.g., F.R.Civ.P. 4(l).
4. Jump up^ E.g., Calif. Code Civ. Proc. 417.30.
5. Jump up^ S. Baicker-McKee, W.M. Jansen, & J.B. Corr, Federal Civil Rules
Handbook, Thomson/West, 2007, p. 220.
6. Jump up^ E.g., D.C. Super. Ct. Civ. P. R. 4(l).
7. Jump up^ E.g., F.R.Civ.P. 12(a); Va. Sup. Ct. R. 3:19(a).
8. Jump up^ E.g., Md. R. 2-613(b); Judicial Council of California, Form CIV100.

9. Jump up^ E.g., D.C. Super Ct. R. 55(a) (14 days, if the clerk dockets the
default sua sponte).
10. Jump up^ E.g., Md. R. 2-613(c).
11. Jump up^ E.g., Va. Sup Ct. R. 3:19(a).
12. Jump up^ E.g., Md. R. 2-613(d); Va. Sup. Ct. R. 3:19(b).
13. Jump up^ E.g., Cal. Code Civ. Proc. 473(b), 473.5; Md. R. 2-613(d).
14. Jump up^ F.R.Civ.P. 55(c).
15. Jump up^ E.g., Calif. Code Civ. Proc. 473(b).
16. Jump up^ E.g., D.C. Super Ct. Civ. Proc. R. 55(c).
17. Jump up^ E.g., Va. Sup. Ct. R. 3:19(b).
18. Jump up^ E.g., Virginia.
19. Jump up^ E.g., Calif. Code Civ. Proc. 579.
20. Jump up^ Servicemembers Civil Relief Act (formerly the Soldiers and
Sailors Civil Relief Act), 50 USC App. 521.
21. Jump up^ 50 USC App. 521(b)(1)
22. Jump up^ 50 USC App. 521(b).
23. Jump up^ E.g., F.R.Civ.P.55(b)(1); Calif. Code Civ. Proc. 585(a),
1169.
24. Jump up^ See, e.g., R.I. Weil & I.A. Brown, Jr., California Practice
Guide: Civil Procedure Before Trial, The Rutter Group, 5:121 f.
25. Jump up^ E.g., Va. Sup. Ct. R. 3:19(c).
26. Jump up^ E.g., F.R.Civ.P. 55(c), 60(b); Va. Sup. Ct. R. 3:19(d).
27. ^ Jump up to:a

E.g., F.R.Civ.P. 60(c)(1).

28. Jump up^ http://www.lupoloverlaw.com/home/blog/146-debtcollection-through-sewer-service

29. Jump
up^ http://web.archive.org/web/20101117070043/http://www.ag.ny.gov/
media_center/2009/apr/apr14a_09.html
30. Jump up^ E.g., F.R.Civ.P. 60(b); Jones v. Hunt, 298 A.2d 220 (D.C.
1972).

31. Jump up^ E.g., Dunn v. Profitt, 408 A.2d 991 (D.C. 1979).
See also[edit]

Judgment (law)

European Enforcement Order

External links[edit]

Civil Procedure Rules in the UK

Lawsuit Updates: Town of Southampton in Default

Categories:
Judgment (law)
Civil procedure

Responding to a Motion for Default

1.

10-21-2007, 01:18 PM#13

Responding to a Motion for Default
My wife and live in AZ. We are being sued by B of A. Their attorney's file a motion for a
default judgment even though we filed our answer in time. What do we do?

2.

10-21-2007, 01:58 PM#2

Betty3
Re: Responding to a Motion for Default
Did you get a summons to go to court - if so, did you go? If you don't show up in court on
date specified, they can get a default judgment against you.

3.

10-21-2007, 02:25 PM#3

Re: Responding to a Motion for Default
I should have specified that the default had to do with our answer to the complaint.
There is no court date set yet

4.

10-21-2007, 03:19 PM#4

Re: Responding to a Motion for Default
Quoting johnb

I should have specified that the default had to do with our answer to the complaint.
What's their objection to your answer?
5.

10-21-2007, 05:46 PM#5

Re: Responding to a Motion for Default
Quoting johnb
I should have specified that the default had to do with our answer to the complaint.
There is no court date set yet
Is this a Rule 55 Motion? It is probably based on filing your Answer in an untimely
manner, that is, beyond the time frame, 28 days, etc., even though you may assume it
was??
Or the Answer could not have been clear as to affirm or deny the allegations to qualify as
a proper pleading?
You need to "carefully" read the base(s) for the motion and you need to counter them as
best you can. It seems you are Pro Se defendant, meaning you are representing yourself.
I am not an attorney, so I will not say for certainty a responsive pleading is required, but
without one, the court may assume the Motion is valid if it is not contested?

6.

10-21-2007, 09:26 PM#6

Re: Responding to a Motion for Default
I am a party to the law suit because I am a spouse because AZ is a community property
state. For a responsive pleading to the plaintiff's motion for a default judgment, what
forms do I use. Is there anyone from Arizona here?

7.

10-22-2007, 05:57 AM#7

Re: Responding to a Motion for Default
Answers to motions are typically drafted based upon the content of and allegations in
the motion itself. You may be able to convince a helpful court clerk to help you find a
motion reply from a similar case to use as a model.

8.

10-22-2007, 02:36 PM#8

Re: Responding to a Motion for Default
It would help to know whether you asnwered the complaint properly and on time. The
form of your asnwer they are supposed to give you some leeway because you are a PRO
SE Defendant.

Forum-Legal System-Civil Procedure

1.

Default Judgments:Motion to Set Aside Default and Default Judgment

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Results 1 to 4 of 4
Motion to Set Aside Default and Default Judgment
My question involves court procedures for the state of: California
Easy question here, involving being sued by the EDD in 2007. EDD won a default
judgment against me as they used last known address from 2002! I did not find out
about the judgment until Feb. 2011 when CA Tax Return was intercepted. Since then,
they have really found me and have garnished wages. I found out that this should be
straight forward - submitting a motion to set aside the default and the default judgment
based on the fact that I was never properly notified. I can back this up with lease
agreements stating my addresses over the years.
I am broke as can be due to 25% garnishment so I want to get this motion right. I have
found the sample from the Law Library, and have the right form on pleading paper. I
know that I have to submit the notice of motion to set aside the default and default
judgment and it must include an affidavit verifying that I did not have actual notice and it
was not my fault. What I don't know about is the "answer, motion, or other pleading
proposed." What exactly are these and where do they go? Also, I read that I have two
years to submit this, but is it two years after I actually find out about the judgment (as in
two years from Feb. 2011)? I can't believe that it would be two years from the judgment
in 2007 as then I will have no recourse!
Any help?
Just found this:
http://www.avvo.com/legal-guides/ugc...-in-california
Are these forms acceptable to use? Just looking for a bit of guidance...thanks in advance
for any help!

1.

05-03-2011, 12:19 AM#2

Re: Motion to Set Aside Default and Default Judgment
for a default judgement to be granted, service of process must be proper.
It then follows that the judge must have been convinced service was completed
somehow.
service to you can be satisfactorily completed in the following ways:
a process server hands you the notice of the complaint and copy of the complaint
directly, at your home or elsewhere.

a process server hands the notice of the complaint and copy of the complaint to any
competent person over 18 at your residence. (roomate, sibling, mom, friend, etc)
sending the complaint etc to you by return receipt registered mail; if you accept the
registered mail and sign for it, service is completed.
If none of the above work, the petitioner may serve you by public notice in a local news
publication. you've seen legal notices in the paper, right? if the EDD didn't know where
you were and couldn't serve you, but obviously knew the address you signed up for
unemployment with, they could serve by publication. service would be complete upon
publication of notice of complaint for an amount of time required by the laws in
California.
To get a default judgement, the petitioner must also show that you are a competent
person over 18, and not a member of the armed forces who cannot respond because of
duty assignment.
You should make sure you fully understand how service was completed (or not) before
attempting to get a default judgement reversed after so much time has passed.
It may just end up being a lot of work for nothing if the service could be reasonably
determined to have been properly done. You need to look at the case file and see what is
there.
2.

05-03-2011, 07:03 AM#3

Re: Motion to Set Aside Default and Default Judgment
I did not receive service in any of the above mentioned manners, and no longer lived in
the city in which my old address resided. I moved twice during the five years (starting at
my first claim through the judgment date) and also left California and moved to Nevada
right around the judgment date. I just came back to CA 9 months ago, so you can see all
of this just caught up to me.
How do I found out how they serviced me? Can I contact the EDD directly or do I need to
contact the Court of Sacramento? I looked up the case online through SacCourt but it
only shows my name and the EDD and the case number.
Help...

3.

05-09-2011, 06:43 AM#4

Re: Motion to Set Aside Default and Default Judgment
Here is some important information that I could not find anywhere on the Internet!
From the ALJ who heard my appeal of the overpayment from 2002:
"Because the overpayment resulted in an innocent mistake, and not my a purposeful,

wilful, and malicious attempt to defraud the State of California, the assessment is
canceled due to the statute of limitation of one year to collect the overpayment."
This is the IMPORTANT information, if anybody is getting sued or the EDD is attempting
to collect on them, go through the trouble of filing your appeal! I filed mine five years
late due to lack of service, and they allowed me to present the appeal on that grounds
(the fact that it was late). Turns out it was all worth it - they were collecting and
garnishing $5000 on a $2400 overpayment. I was fighting it on principal, but it turns out
I will be getting every cent of my money back!
Thanks for the assistance!