In the event that one party to a civil lawsuit or other civil court action fails to appear at a scheduled hearing, or fails to respond to a summons after having been officially served, the other party may be awarded the judgment they are seeking. Default judgments are most often awarded to plaintiffs when the defendant fails to respond, but a defendant may be awarded such a judgment in the event the plaintiff fails to attend a hearing or trial, or fails to meet certain deadlines for filing documents. To explore this concept, consider the following default judgment definition.
Definition of Default Judgment
- A binding judgment in favor of either party to a civil action when the opposing party fails to take action.
Service of Process, Appearance, and the Default Judgment
The plaintiff in a civil action has the responsibility of ensuring the summons and complaint are personally given to the defendant by a process server or other person qualified to make service. This is called “service of process,” and the person serving the papers must complete and sign an affidavit, referred to as a “proof of service,” swearing to the time, place, and manner of service. The proof of service must be filed with the court before the matter may continue.
Following this initial personal service, both parties must ensure the other party is served with any additional documents in the lawsuit, though service may occur through the mail if someone not involved in the lawsuit mails the documents and signs a proof of service.
What is a Default Judgment
Once the defendant has been legally served with the appropriate documents, he has a specific amount of time to respond. Failure to respond as required, or failure to make an appearance at the scheduled court hearing, can result in the court issuing a default judgment in favor of the party who did appear. The default judgment means that the party who complied with the terms of the lawsuit, including appearing at court as scheduled, wins the case. If either party fails to attend a scheduled hearing or trial, the judge may enter the default judgment in their favor.
For example, Randolph is suing Sam for hitting his car in a parking lot. If Sam doesn’t file a response to the lawsuit with the court, Randolph may make a motion for default judgment. On the other hand, if Randolph fails to attend the trial, the judge will enter a default judgment in Sam’s favor, dismissing the lawsuit altogether. If neither party appears in court, the judge will generally dismiss the case, though he has the ability to reschedule it for a later date.
Motion for Default Judgment
When a defendant does not appear, the judge may require the plaintiff to provide evidence and information showing that the defendant owes damages. Since the defendant is not present to contradict the plaintiff’s claims, or present evidence to the contrary, the Plaintiff’s evidence is usually taken at face value. Often times, the papers served to the defendant will state that failing to appear will automatically result in a default judgment. When a judgment is entered due to default and it is not reversed on request of the defendant, it is considered a final judgment.
In many circumstances, a default judgment is not automatically entered, though the plaintiff may file a motion for default judgment. In this request for the judge to make a default judgment, the plaintiff must state the reasons he is entitled to such a judgment, which usually entails the defendant’s failure to follow through with the lawsuit. A motion for default judgment is filed with the court clerk and, depending on the exact circumstances, there may or may not be a hearing.
Motion to Set Aside a Default Judgment
A party who finds he is unable to make the scheduled hearing may request that it be rescheduled. This is done by contacting the court clerk, and is preferable to simply not showing up. In the event a party fails to make the hearing due to serious circumstances beyond his control, such as being involved in a car accident, it is vital that he contact the court to let them know. If the party’s failure to appear is for good cause, the court will reschedule the hearing, or take it off calendar until the parties ask to have it rescheduled.
In the event contacting the court prior to the beginning of the hearing is impossible, it is possible to file a motion to set aside a default judgment. This is a formal pleading filed with the court requesting that court overturn, or “undo,” the previously entered default judgment. Overturning, or “vacating” a default judgment puts the lawsuit back in motion, lending the possibility of a different outcome.
The motion to set aside default judgment must contain an explanation or argument as to why the party feels the judgment should be overturned, and the matter heard again. The motion must be served on the opposing party, and generally a hearing will be held.
Servicemembers Civil Relief Act
In the United States, the Servicemembers Civil Relief Act protects members of the armed forces from certain court proceedings that occur in their absence. When suing a member of the armed forces, the plaintiff must provide the court with a signed affidavit stating that the defendant is not deployed, on an overseas tour of duty, or otherwise not available due to his service. In the event the plaintiff fails to provide such an affidavit, the Servicemembers Civil Relief Act enables the court to appoint an attorney to represent the defendant’s interests, and to postpone the hearing.
Examples of Default Judgment
Credit Card Default
Judy obtained a credit card from a reputable credit card company. After making regular payments for several months, Judy lost her job and could no longer afford to make the payments. After attempting to collect the debt, the company assigned the debt to a collection agency, which was also unable to secure payment. The credit card company then filed a civil lawsuit against Judy in an attempt to secure payment. Judy was served the Summons and Complaint by the county sheriff 30 days before the court date. She filed the necessary response papers, but failed to show up in court on the specified date.
The credit card company’s attorney appeared, showed the judge documentation of the amount Judy owed the company, and obtained a default judgment in favor of the plaintiff. This gave the credit card company the ability to put a lien against Judy’s home, bank account, or other property of value, and to request a wage garnishment once she became employed again.
Order of Protection
During an ugly break-up, Jennifer’s ex-boyfriend came to her house and made threats of violence against her and her children. Jennifer called the police, then filed for an Order of Protection, also referred to as a “Restraining Order,” from the court. The boyfriend simply didn’t show up at court, and so after hearing the issues and facts of the case from Jennifer, the judge entered a default judgment, issuing an Order of Protection against the boyfriend.
Related Legal Terms and Issues
- Civil Lawsuit – a lawsuit brought in civil court in which one party claims to have suffered a loss due to the actions of another party.
- Defendant – a person or entity sued by another person in civil court, or accused of committing a crime in criminal court.
- Default – failure to fulfill an obligation, such as responding to a legal summons, or failing to appear in court.
- Final Judgment – a court’s last action that settles the parties’ rights in a civil lawsuit. A final judgment ends the conflict at hand.
- Plaintiff – a person or entity who brings a civil or criminal case against another person or entity.
Jurisdiction – the official right and authority to administer justice by hearing controversies and rendering judgments.