What Does "Motion for Default" Mean?

By Beverly Bird - Updated June 19, 2017
Courthouse facade

Avoiding unpleasant situations can sometimes be human nature, but if you do it when someone has filed a lawsuit against you, it could have disastrous results. If you don’t respond to a lawsuit by filing an answer with the court, you’re in default. The party who sued you can file a motion asking the court to make a record of this. If you’re served with papers and you feel over your head, take them to a lawyer to find out what you must do to protect yourself.

Failure to Respond

Default is the result of a failure to respond to a lawsuit in any way. Courts usually don’t want to see this happen. They want cases judged on their merits -- which means based on the facts involved -- not decided because one party didn’t participate in the proceedings. In some states, the judge will not grant the other party’s default request if you just show up in court, even if you don’t file a formal, written answer within a statutory period of time.

The Default Request

All states have deadlines by which a defendant must respond after a civil lawsuit is filed and served on him. This period may be anywhere from 20 days to a month or even longer -- it varies by state. If you don’t file a written response with the court during this time or ask the court for an extension, the plaintiff -- the person who filed the lawsuit -- can request a default as soon as time expires. This is typically done by filing a motion asking the court to enter default against you. The court will note on your case record that you did nothing to defend yourself in the suit. In some states, this doesn’t require a formal motion -- the plaintiff can simply complete and submit a form for a default request. She must serve you with a copy of this paperwork as well so you should be aware that all this is happening. In some states, the court will send you notice.

The Final Judgment

A motion for default does not end your case in most states. The plaintiff must typically take one more step and ask for a final judgment against you after default is entered. This is where doing nothing to defend yourself can hurt you. The plaintiff usually gets everything she asked for in the initial petition or complaint she filed against you. If she filed for divorce and requested all the marital property, the judge will most likely give it to her because you’ve done nothing to indicate that this isn’t OK with you. If a creditor seeks a money judgment against you, the court will most likely award him the full amount because you haven’t disputed it.

Vacated Judgments

Most states offer a window of opportunity for you to fix things if you find out that default and a judgment have been entered against you. If too much time hasn’t elapsed, you can usually file a motion asking the judge to vacate or set aside the judgment. If he agrees, the case is reopened and you can defend yourself this time. But you’ll need grounds -- a good reason why you didn’t respond in the first place. For example, maybe you were too ill to file an answer or you never received notice of the lawsuit. You might not have understood that you were supposed to do something in response to complaint. If you can present a good case for why you didn’t respond, the judgment may go away and the whole case will start over again, but you may need the help of an attorney to present a good argument.

About the Author

Beverly Bird has been writing professionally for over 30 years. She specializes in personal finance, divorce and family law, bankruptcy, and estate law, and she writes as the tax expert for The Balance. She is the author of more than 30 novels.

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