Default judgment
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. Federal Rule 37(b)(iii) also 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. The failure to take action is the default. The default judgment is the relief requested in the party's original petition, which is why initial pleadings are often so exaggerated.
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
. If proof
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.
, 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 14 day 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
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 http://www.bailii.org/ew/cases/EWCA/Civ/1999/2016.html 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 Texan and US law being similar, although of course the English Court has no jurisdiction to determine that point.
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.
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.
, 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.
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 (also known as a proof of service), which gives enough information to allow the court to confirm that valid service has been accomplished. 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. Once the requisite time to respond to the complaint has passed, the defendant is "in default
"; this may be automatic, or it may require the court clerk to enter the default (which may, in turn, require that the plaintiff request entry of the default). Some defaults do not take effect until a set period of time after the clerk acts. The clerk may have to give the defendant notice of his default, affording a chance to have the default vacated.
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.
United States law (specifically the Servicemembers Civil Relief Act) significantly restricts default judgments against members of the military services. 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. 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.
Some jurisdictions allow a clerk of court to enter default judgment in certain simple cases. These typically involve no exercise of judgment or discretion. Otherwise, a default judgment must be issued by a judge, who may require the plaintiff to present proof of his claims.
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). 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."
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
when the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
has not responded to a summons
Summons
Legally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
or has failed to appear before a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
of law. Federal Rule 37(b)(iii) also 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. The failure to take action is the default. The default judgment is the relief requested in the party's original petition, which is why initial pleadings are often so exaggerated.
Default can be compared to a forfeit
Forfeit
- In sport :* Forfeit * Forfeit , defeat in a chess game by a player being absent or out of time* Declaration and forfeiture, in cricket, two possible ends of an innings- In law :...
victory
Victory
Victory is successful conclusion of a fight or competition..Victory may refer to:**strategic victory**tactical victory** Pyrrhic victory, a victory at heavy cost to the victorious party**Victory columns**Victory Monuments**Victory personified...
in sports. In a civil trial involving damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
, a default judgment will enter the amount of damages pleaded in the original complaint
Complaint
In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In...
. If proof
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
of damages is required, the court may schedule another hearing
Hearing (law)
In law, a hearing is a proceeding before a court or other decision-making body or officer, such as a government agency.A hearing is generally distinguished from a trial in that it is usually shorter and often less formal...
on that issue. A party can have a default judgment vacated, or set aside
Motion to set aside judgment
In law, a motion to set aside judgment is an application to overturn or set aside a court's judgment, verdict or other final ruling in a case. Such a motion is proposed by a party who is dissatisfied with the end result of a case. Motions may be made at any time after entry of judgment, and in some...
, by filing a motion, after the judgment is entered, by showing of a proper excuse.
How judgment arises
In England and WalesEngland and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
, a Claimant
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
starts a case by issuing
Issue (legal)
In law, issue can mean several things:*In wills and trusts, a person's issue are his or her lineal descendants or offspring. These are distinguished from heirs, which can include other kin such as a brother, sister, mother, father, grandfather, uncle, aunt, nephew, niece, or cousin.*In...
a Claim Form
Summons
Legally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
. 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
Service of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
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 14 day 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
Civil Procedure Rules 1998
The Civil Procedure Rules are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil cases in England and Wales...
Effect of judgment
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 http://www.bailii.org/ew/cases/EWCA/Civ/1999/2016.html 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 Texan and US law being similar, although of course the English Court has no jurisdiction to determine that point.
Varying default judgment
If a Defendant accepts the judgment, and the amount, but can't pay, the Defendant should 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
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 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
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
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 CourtsUnited States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
, Tribal Courts and many Administrative Agencies
Independent agencies of the United States government
Independent agencies of the United States federal government are those agencies that exist outside of the federal executive departments...
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
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
(Rules 55 and 60) are the basis for many procedures in default.
Entry of default
Typically, the plaintiff (or cross-complainant, cross-plaintiff, counter-claimant, counter-plaintiff, third-party plaintiff, etc.) must show that service of processService of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
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
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
of service (also known as a proof of service), which gives enough information to allow the court to confirm that valid service has been accomplished. 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. Once the requisite time to respond to the complaint has passed, the defendant is "in default
Default (law)
In law, a default is the failure to do something required by law or to appearat a required time in legal proceedings.In the United States, for example, when a party has failed to file meaningful response to pleadings within...
"; this may be automatic, or it may require the court clerk to enter the default (which may, in turn, require that the plaintiff request entry of the default). Some defaults do not take effect until a set period of time after the clerk acts. The clerk may have to give the defendant notice of his default, affording a chance to have the default vacated.
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.
Relief from default
A defaulted defendant may move the court from relief from his default, but usually must do so promptly and must provide "good cause" for his failure to answer the complaint in time. Often, part of the procedure for relief from default involves the defendant filing an answer to the complaint. 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.Default judgment
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; 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.United States law (specifically the Servicemembers Civil Relief Act) significantly restricts default judgments against members of the military services. 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. 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.
Some jurisdictions allow a clerk of court to enter default judgment in certain simple cases. These typically involve no exercise of judgment or discretion. Otherwise, a default judgment must be issued by a judge, who may require the plaintiff to present proof of his claims.
Relief from default judgment
A defendant who has had a default judgment entered against him may move for an order vacating the judgment. 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. There are often time limits and other requirements.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). 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."