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How does plaintiff respond to defendants motion for orders to set aside default and vacate judgment?
KEEPONDOZEN
Courts generally prefer to decide cases on the merits (facts), rather than by default. However, when an answer to a complaint has not been timely filed, and damages are proven to the satisfaction of the court (either by affidavit or by testimony), a default judgment may be entered.
Most jurisdictions require that in order to set aside a default judgment, the following be shown. This assumes a failure to answer a complaint-rather than a default judgment resulting from pleadings having been stricken as a sanction for noncompliance with a court order:
--a reasonable excuse for not answering the complaint. Within the scope of this would be the failure to be properly served with process (personal, substitute, or lawful constructive service per applicable statute). If proven, bad service of process effectively voids the judgment, as it can be argued that the court never got personal jurisdiction over the defendant(s). There are other valid excuses for not timely answering; the court has much discretion in that regard.
--an arguable, substantive defense to the Plaintiff's claim. It is not enough to say "I did not do it". The motion has to allege facts that tend to show the existence of facts supporting the defense. Otherwise, it would be a waste of time and resources to vacate the default and have a hearing or trial.
The motion should be made as soon as possible after discovering the existence of the default judgment. While a prompt motion will not in and of itself guaranty success, waiting a long time to file it will tend to prejudice success.
The motion gets filed with the Clerk of the Court where the judgment was entered, and a copy mailed to the the Plaintiff or his/her/its attorney of record. The judge's office should also be contacted for instructions as to how to schedule a hearing on the motion.
All of that said, the Plaintiff could argue that there was proper service and that there was no reasonable excuse for failing to timely respond. The Plaintiff would further argue that the Defendant has no meritorious defense to the underlying claim and therefore, a trial on the merits would not change the ultimate outcome. The Plaintiff could also argue that the Defendant waited too long to move to have the default judgment vacated. While there is nothing akin to a statute of limitations for such a motion, the Plaintiff may take the position that the Defendant just waited too long.
Finally, depending upon the complexity if the underlying matter, retaining a lawyer may be advisable.
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What does motion and request for default mean?
A plaintiff starts a lawsuit by filing a complaint and serving the complaint and summons on the defendant (or defendants). If the defendant does not answer the complaint or otherwise respond to the suit, the plaintiff make request a "default judgment." This means, more or less, "the defendant has not responded and the court should therefore grant what I sought in the complaint." Usually, a default judgment will be restricted to the relief sought in the complaint and will be restricted to amounts that are reasonably calculable. For example, say somebody hit you with their car, and you sued for $100,000 in medical bill. If the defendant ignores the lawsuit, the plaintiff will request a default judgment, and the court will likely grant them a $100,000 judgment. The plaintiff will then take the judgment to (most often) the county sheriff's department, which will then seize a defendants property to be sold to pay the judgment; or plaintiff can seek other remedies, like garnishment of wages. Lesson: don't ignore lawsuits. That's how you lose for sure.
What is Request of entry of default?
When a person (the plaintiff) sues someone (the defendant), the defendant gets a certain amount of time to respond to the lawsuit (times vary by state). If the defendant does not respond to the lawsuit within the time period prescribed or does not show up to court on the day he or she is supposed to, the plaintiff will ask for (and the court will usually give) a default judgment. Simply put, the plaintiff wins because the defendant did not make an effort to defend themselves. A request for entry of default is when the time has passed for the defendant to respond to a lawsuit and the plaintiff is asking for a default judgment. This only applies to civil cases, not criminal cases.
If the defendant in a civil suit does not respond to the charges what happens?
The plaintiff will win a by default and a judgment will be entered against the defendant. There are not laws that require a person to file an answer or to be present at the civil suit hearing.
The Plaintiff filed for Motion for default judgment and i received a notice that the motion for default judgment is hereby denied What does that mean to me being the defendant?
That normally means the plaintiff asked the judge for a judgment against you not on the facts of the case but just because you're in default (for failure to appear, plead, answer, or do something else you're supposed to do as a defendant in litigation wherever you are). And apparently the judge said no, and either the law required that notice be sent to you or the judge in his or her discretion ordered that notice be sent to you. So right now there's no judgment against you -- yet. The next step if you do nothing but continue to receive court notices and you do not respond, may be for the plaintiff to ask the judge for a trial date where the plaintiff puts on its witnesses and evidence and if you are given notice to the trial and don't show up the judge could enter a judgment against you "ex parte" (one-sided) and then it just gets more difficult to undo anything.
Can a judgment be filed against a person without going to court?
No, even if the plaintiff wins the case through arbitration they will still need to file a petition with the court of venue to receive a writ of judgment. On the other side, however, if the defendant fails to respond to a summons pertaining to a lawsuit or judgment he/she will lose by default and may not be able to claim any of their property exemptions.
What happens if you don't appear in a civil suit court case?
The plaintiff wins the case by default and a judgment is entered against the defendant. A civil lawsuit summons is not a court order per se and therefore the defendant is not obligated to appear. An order of appearance from the court, interrogatories, depositions, discovery motions and so forth are different matters and the person(s) named should always respond. Legal counsel is always advisable in such matters.
What is a person who brings a lawsuit?
The Plaintiff.
How do you appeal a default judgment to which you were never served a summons?
You have 30 days to respond to a default judgment by going to the courthouse and filing an appeal. A new trial will be set where the judge will either give you another opportunity to hear your side or vacate the judgment if you can show that you were not properly served.
What is a judgment of default?
The term describes the action taken by the court when the named defendant fails to respond to the lawsuit summons in writing and/or appearance upon the court date. A defendant is not required to make an appearance in court in a creditor suit, but failure to do so means the plaintiff will be automatically be awarded a writ of judgment. Such a judgment can then be executed against the defendant's real and personal property in accordance with the laws of the defendant's state.
Can a collection agency garnish your wages if you don't respond to a summons served in CA?
Yes. They can get a writ of judgment and enforce it in the form of wage garnishment. In civil court when a defendent does not answer a summons the plaintiff wins the case by default. Sometimes an appeal can be filed if there is a justifiable reason the defendent could not appear at the hearing.
In a quiet title action defendant failed to respond to summon do plaintiff make request for default or is it done be the court after a period of time Default has been over 15 days?
In what state/locality was the quiet title filed?
How does a default divorce work in Florida?
If your spouse has been notified of the pending divorce and fails to respond to the petition within the allotted 20 days, then you can petition the judge for a default judgment of divorce.
