If you obtain a default judgment from the court and the defendant doesn't move to set it aside, it operates as a judgment against him. You can proceed to collect under a money judgment or enforce whatever rights you have won.
What Is a Default Judgment?
An entry of default is the legal equivalent of the "you snooze, you lose" rule. Once a defendant has been given notice of the court case against him, he has a limited amount of time to appear before the court or file an answer to the lawsuit.
One of the documents the defendant receives is called a "summons," which sets out his time frame for answering the complaint and/or appearing before the court (the time frame depends on the court and state in which you are proceeding). It also lets him know that, if he doesn't take action, the court can enter default and then order a default judgment against him.
The court isn't counting down the days, nor will it leap in of its own accord to bar the defendant's way to the courthouse door if he is late. This is your job as the person filing the lawsuit. Once you know that he has been given the legal documents in a way the law requires (e.g. someone handing them to him personally, etc.) calculate and mark on the calendar his final day to answer or appear.
When he doesn't file an answer and doesn't show up, you prepare all the documentation, enter his default and to get a default judgment from the court. Don't think it's a done deal, however, because if the defendant does appear at the default hearing, the court usually allows him to proceed. But if he doesn't, and your papers are in order and your evidence persuasive, you can walk out of court with a default judgment.
So what happens then?
Read More: What is a Default Judgment?
What Happens After a Default Judgment Is Issued?
Assuming the judge signs your papers, the first thing you need to do is to make a copy and have it served on the defendant. Check your state's rules, but often you can have a third party mail the copy to the defendant, then complete a Proof of Service, which you then file with the court.
Your next step is to take action to enforce your judgment. If the judgment is for money, you might file for a writ of execution to attach a bank account. If the judgment is for possession of an apartment, you might call the sheriff's office to organize an eviction. Your rights are the same as if you went to trial and won.
What Is a Motion to Vacate?
A defendant who missed the deadline to answer a complaint and fails to show up at the entry of default hearing may, in time, decide to act. The defendant can file a Motion to Vacate the judgment. Generally the court grants the motion if the defendant shows he was not served with the complaint or that his failure to appear was based on mistake or excusable neglect. In many states, he'll also have to show that he has a meritorious defense; that is, he'll have to show that if the judgment is vacated, he has a chance at winning if the case goes to trial. Without both the meritorious defense and excusable neglect, the court can't vacate the judgment, even if the defendant very clearly has one of these. For example, if your defendant could have argued that he wasn't responsible for a debt because of the statute of limitations, but he has no excusable neglect for his failure to respond to the lawsuit because his only reason is that he didn't feel like answering it, the judge should not vacate the judgment.
The court has a lot of discretion with respect to how it deals with a motion for relief from a default judgment. If the court vacates the default, the defendant will have another chance to file an answer to your lawsuit, and then you are back to the beginning, arguing the matter on the merits of the issues. Of course, if he again fails to file an answer, you can get another default judgment.
Once you obtain a default judgment against someone, you can proceed to collect on the judgment or take whatever other action the judgment permitted you (such as eviction or foreclosure). However, the defendant may be able to attack the judgment if he can show that his failure to answer was the result of excusable neglect.
- Nolo: Default Judgement
- Nolo: If the Defendant is a No-Show
- Nolo: Tips for Collecting Your Judgment
- Sacramento County Public Library: Request a Default Judgment by Court
- San Mateo Small Claims: How to Vacate Default Judgment
- San Diego Law L Motion to Vacate a Default Judgment or Set Aside a Dismissal ibrary:
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.