A motion for default judgment is when a plaintiff requests that the court rules in their favor since the defendant hasn’t replied to the lawsuit, summons, or other court order within a specific amount of time.
Although the defendant has a chance to explain their lack of response, they need to do so quickly or risk paying damages to the plaintiff. They usually have 20 to 60 days in which to respond after being served, or it is considered a default.
Filing a motion for default can help you proceed with your case and have it resolved, instead of being delayed any further.
If you’re dealing with a non-responsive defendant, you might want to file a motion for default. Here is what you need to know about it and when you should consult with an experienced lawyer for assistance with the process.
When is a Motion for Default Allowed?
There are various instances in which a motion for default is allowed, with the most common ones being:
- Lack of a filed response. This is when the defendant who was served didn’t file a formal response within the specified timeframe.
- Failure to follow orders. It’s sometimes the case that a default judgment occurs when a defendent doesn’t appear at court proceedings, such as a hearing, or doesn’t follow the court’s orders.
- The defendant responded but didn’t participate. A motion to default can also occur if the defendant responded but then didn’t show up for the court proceedings.
How Do You File a Motion for Default?
When filing a motion for default, you’ll need to consider the following steps.
File an Entry of Default
Before you can file a motion for default, you’ll have to secure an entry of default from the county clerk or judge, depending on your jurisdiction. That said, it’s common for the clerk to do the entry if the opposing party hasn’t filed or served any papers.
Show Evidence
To get a motion for default, you’ll have to show proof that you properly served the defendant. Having original copies of what you submitted to them is essential, but you'll usually also need an affidavit that states the defendant was served properly. The clerk will enter the default.
File a Motion for Default
Once you have the entry of default, you can file a motion so that the court rules in your favor because of the defendant’s failure to respond.
This motion includes information about the claim, what damages you seek, and supporting evidence. Should your motion be successful, the court will grant the judgment. This means the defendant will be liable for damages.
Things to Bear in Mind when Filing a Motion for Default
- The defendant can file a motion to set the default aside, which is when they request the court to cancel the judgment. However, they will need to have a valid reason for why they never responded, such as proof that they were never served properly.
- Even if the defendant has defaulted, they’re allowed to file motions or pleadings with the court. When the clerk has entered the default, the defendant is no longer able to do so.
- If the defendant is represented by counsel, you might have to consult them before filing an entry of default because not informing them could result in the defendant having grounds to set aside the default at a later stage.
- It’s crucial to have a clear, factual complaint in writing. If the court doesn’t think that your complaint is strong enough, they could set aside the default.
After filing a motion, the court will decide how to proceed, which could result in a hearing or other orders.
What to Do if a Default Judgment is Filed Against You?
If you’ve received a default judgment, you need to act quickly.
- Consult with your lawyer. A lawyer who has experience in default judgments can help you to understand what’s expected of you and how best to respond to the complaint. For example, they will advise you on whether you should challenge the judgment or negotiate a resolution.
- Be mindful of deadlines. Missing a deadline to respond can be what landed you in this situation in the first place, so always note the date you were served. If you weren’t served and have no proof of it, your lawyer will be able to help you pursue a set aside motion. After a default judgment is entered, you should note the date on which it was issued and how long you have to respond to it.
- Collect information that will help you strengthen your case. Your lawyer will help you gather all the important documents you need.
- Consider settling. Your lawyer might be able to negotiate with the plaintiff’s counsel on your behalf about how to resolve the situation, such as with a settlement.
Do You Need a Lawyer when Filing a Motion for Default?
If you’re filing a motion for default, it’s advisable to consult with a lawyer. This is because the rules for default judgments vary quite a bit in different locations, and you want to ensure you follow all the correct procedures to file successfully and avoid any pitfalls. Your lawyer will know all the local rules that affect your case and motion, so you do everything by the book. This will increase your chances of success.
A lawyer will also help you to avoid making mistakes that can get your motion for default denied. These include if you file too early, don’t first get an entry of default, or if you have insufficient proof of the damages you think are owing to you.
Are you ready to hire a lawyer for a motion for default?
Consult an experienced, professional lawyer on ContractsCounsel, an online legal network that connects clients with lawyers who have been vetted on the platform. They have years of experience in helping clients file and deal with motions for default, and will use their expertise to assist you in navigating the situation.