Lawsuits aren’t fun. Few people want to sue, and even fewer want to be sued. However, every day a plaintiff files a new suit against a defendant, and that defendant generally has 30 days from being served to answer. In a perfect world, every defendant will timely respond to the plaintiff’s complaint. In reality, things happen. Defendants forget or unforeseen circumstances arise that make the defendant miss the deadline to answer.   Whatever the reason, on the 31st day without a response, the plaintiff is allowed to begin the two step process of obtaining a default judgment.

The first step is simple. The plaintiff must go to the court where they initially filed the complaint and now file for an entry of default. An entry of default basically states that the plaintiff properly served the defendant, waited the appropriate amount of time (30 days), and received no response. If everything is in order, the clerk will sign. Congratulations! You can now move on to step two.

Step two is a bit more complicated. A default judgment is just as the name suggests: a judgment against a party. When a default judgment is entered, the court has made their ruling or decision. If the plaintiff is suing the defendant for what’s known as a sum certain, the clerk of court can enter the default judgment. Let’s pause for a moment to break down the phrase “sum certain.” A sum certain is a specific amount of money damages that the plaintiff can prove. For example, Plaintiff and Defendant enter a written contract for Plaintiff to fix Defendant’s car for $2000, and Defendant does not pay. Because Plaintiff has the contract as proof with the amount listed, there’s a sum certain, and the clerk can sign the default judgment (often at the same time the entry of default is entered).   If there is not a sum certain or the defendant manages to appear before the clerk is able to enter the default judgment, the judgment has to be entered by a judge. Judges like to be fair which means that there will likely be a hearing where the plaintiff explains how they came up with the amount of damages. If it is reasonable, the judge will allow the default judgment.

The Default Judgment process sounds great for the plaintiff, but there’s hope for the defendant too. As stated before, things happen. The important questions for the Defendant are 1) “What happened?” and 2) “When did you discover the problem?” These are important for when the court considers setting aside the entry of default.

Let’s start with the second question of timing because of the different standards in challenging an entry of default and an actual default judgment. With an entry of default, the defendant has to give good cause (aka what happened) for why they never responded. Good cause is essentially any logical reason for forgetting. Think about the classic excuse “my dog ate my homework.” That could be good cause! Imagine being at the courthouse at 4:50 on the 30th day. You have just enough time to run inside and file your answer. All of a sudden, your dog grabs your response and rips it apart. By the time you are able to return the next day, the plaintiff has already filed for entry of default. You get to go in front of a judge to explain the situation (because you made an appearance before the default judgment was entered). The judge believing is you is a different matter entirely…

If the default judgment has been entered, the challenge is tougher. Not only does the defendant have to have a reason for not responding, they have to actually have a defense to the action. Rule 60 gives a list of reasons why a judgment can be set aside, and the most common reasons are mistake, inadvertence, surprise, or excusable neglect. Earlier, the dog ate your complaint. The judge believes your story and calls your lack of response inadvertence (meaning beyond your control). Now you have to convince the judge that you actually have a defense to the plaintiff’s action. If you’re able to do so, the default judgment will be set aside.

Here’s a quick summary. The plaintiff files for the entry of default and default judgment. If there’s a sum certain, the clerk can enter both. If there’s not a sum certain or an appearance by the defendant, the judge has to enter the default judgment. If the defendant then has to challenge an entry of default, he must only prove good cause. If the defendant has to challenge a default judgment, he must not only have a good cause but an actual defense to the action.

For further information on the difference on filing for default judgment or overturning a default judgment, contact us at eric@lawplusplus.com or by calling 919-307-5396

Disclaimer

The information on this website is not intended to create an attorney-client relationship. Any information is meant strictly for legal educational purposes and is not intended to be legal advice.

© 2020 Law Plus Plus

Relationship

By contacting an attorney, you are presenting the option for that attorney to accept your case, and that attorney has the option to accept or reject your case. Any information presented to an attorney at Law Plus Plus does not automatically create an attorney client relationship.

Security

We make no warranties as to the security of information presented or submitted through this website.

Monthly NewsletterGet new articles and firm updates directly to your inbox!