If you’re a civil defendant, look out for the default judgment motion. It can be a killer.
In fact, the majority of defendants in certain cases lose by way of a default judgment.
A default judgment is one where the defendant, after being served with a lawsuit, didn’t respond within the time allowed by the court.
They either didn’t submit a written answer or didn’t appear in court as summoned. Furthermore, the defendant didn’t appear at the hearing on the default motion or appeared with no evidence. The judge entered a default judgment, giving the plaintiff everything he asked for.
If you’re a plaintiff, a default judgment is great. That means you’ve done everything right, from the filing of the complaint to service of summons, to “winning” a default judgment. You can go collect your judgment unless the defendant is successful at vacating it.
If you’re a defendant, you’ll have a tougher time, but you may not be out completely. Here’s a scenario for review.
College student, Rosita was pulling her car out of a grocery store parking space when she scraped the bumper of the car next to her. She and her passenger, Janey, got out and inspected the other car for damages. There was no dent on the Hyundai Elantra, but there was a slight scraping of the paint from the back bumper. The damage looked as if it would cost less than her $500 deductible.
Seeing no one else nearby, she put a note on the car with her name, phone number and driver’s license number.
Rosita never received a call from the car owner. Instead, she received a call from her insurance company. They informed her that the owner of the Hyundai, who was uninsured, claimed to have a dented bumper that would cost $691.81 to repair. Rosita denied that, and she and Janey told their story.
Three months later, the owner called Rosita and asked her to pay for the damage to the car. The owner said Rosita’s insurance company refused to pay. Rosita refused to pay.
Rosita waited to hear back from the car owner with a lesser amount, but heard nothing. A year later, she graduated from college, moved back to her hometown in another state, and started work with a pharmaceutical company.
Four years after the scratched car incident, the owner of the Hyundai sued Rosita. Rosita didn’t answer the complaint because the statute of limitations had passed weeks before she received her summons. Even if things went wrong for her, she could pay a measly $691.81 now.
Things didn’t go well for Rosita in court. She learned that the case had been filed within the statute of limitations requirements. The owner of the Hyundai was able to get a default judgment against her. Afterwards, damages ballooned to $1242.67.
Choices Regarding a Default Judgment
Rosita has a number of choices at this point. She could
- Do nothing and let the owner come after her in another state for the money. This is a dangerous decision because Rosita would always be in a defensive position and subject to a court order.
- Negotiate with the owner to pay the original amount quoted or a lesser amount than the judgment. Rosita had no intention of negotiating.
- Move to set aside, void, or vacate the judgment.
The above varies depending on each jurisdiction and the way it handles defaults and default judgments.
For Rosita, the notion of paying the plaintiff what he asked for was reprehensible. The scratch on the car was minor. She almost wished she hadn’t put a note on it. Why hadn’t she simply driven off? Because the legal and responsible thing was to put a note on the car. Still, that gave her little comfort. In the end, she decided to fight to set aside the default judgment.
Understanding Rosita’s Predicament
Rosita defaulted. In doing so, she in essence admitted to the material facts of the claim and is liable for damages. The other party entered a default and moved for a judgment. In some jurisdictions, a simple payment of a court fee at this point can remove a default. In those cases, a court clerk can automatically set aside the default when payment is made. Most jurisdictions have fairly simple ways of dealing with a default.
A default judgment, a final order entered after a hearing, is different. Now, Rosita must offer evidence to reduce the amount of damages.
Steps to Address a Default Judgment
Moving Party. If you want a default judgment
- Wait the allotted time for the defendant to appear.
- If the defendant doesn’t appear in person or answer in writing, move for a default judgment.
- In your motion, provide evidence justifying an award of judgment to you.
- After a default is declared, move for judgment against the defendant.
Opposing Party. If you want to oppose a default judgment
- Appear at the hearing on the motion for default judgment
- Show there is substantial evidence of a defense.
- Show that the failure to appear was due to mistake, surprise, excusable neglect, etc.
- Provide evidence that you acted with due diligence after receiving notice of default.
- Show that no substantial hardship will result to the plaintiff if the default judgment is vacated.
Rosita went to court and argued to set aside the judgment and for reduced damages if the judgment is entered. Janey, who still lived in the town where the “accident” occurred, was her witness. In the end, Rosita was very satisfied with the judgment, $200 for the plaintiff. To her, it was worth the trip to her old college town.
Don’t let a default judgment kill your defense. In our scenario, Rosita deliberately defaulted. In many cases, a default may not be intentional. Challenging a default judgment is worth a try in any jurisdiction. Just bring along your evidence.
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