A Default Judgment Roadmap - ABA YLD 101 Practice Series

By Richard D. Williamson

Although obtaining a default judgment is a relatively simple, rule-specific process, problems can arise for the unwary or inattentive attorney. It is important to satisfy all of the applicable requirements before submitting an application for default judgment. With courts often back-logged, it may be weeks or even months before your application is reviewed. If a problem is discovered at that stage, it can delay your default judgment for several more weeks. As parties facing default judgment are often evading other creditors and/or on the verge of bankruptcy, such delays can result in significant problems for the client, such as facing added costs in collection, losing priority to other judgment creditors, or having to pursue the underlying action in the confines of the bankruptcy system. Moreover, problems in pursuing the default judgment may go unnoticed initially, but can subject the default judgment to being set aside on review. Therefore, an application for default judgment should be done once and done right. Although not exhaustive, the following suggestions provide a helpful framework for doing so.

Read the rules
Obviously, state and federal courts have different procedural rules governing default judgments. Although many follow the same general procedure, they can vary in significant respects. Moreover, the local rules of individual state and federal courts can impose additional requirements that you must follow.

Review the complaint
Ensure that there are no errors or issues with the complaint. The complaint is the basis for the relief you seek; although a supporting affidavit can supplement a concise complaint, it cannot supplant a defective one.

Confirm that service was properly completed
Proper service is critical. The affidavit of service should be filed with the court and demonstrate that service strictly complied with the procedural rules. Not only can ineffective service result in a rejection of a requested default or default judgment, it is also an easy way to set aside a default judgment that was entered in error.

Make sure that the time for a response has expired
If you have had any interaction with the opposing party or their counsel, you should also file a notice of intent to take default. Even without a formal appearance on the record, custom, caution, and ethical considerations all favor giving notice. Filing a notice of intent to take default will also help protect an eventual judgment from being set aside later. Once all deadlines have expired, request that the court clerk enter default. Most courts have a form default, which may be available at the court or on the court's website.

Application for default judgment
In limited circumstances, the court clerk can enter a default judgment. However, the safer and more common approach is to request a default judgment from the court. One reason to prefer the court is that it has some discretion in setting damages and awarding attorney's fees while the clerk's latitude is much more confined. Another reason is that the court's judgment is more protected from a challenge in the event of a motion to set aside the judgment.

Supporting affidavit
A supporting affidavit can serve a variety of purposes. As the lawyer and the client frequently have different spheres of personal knowledge, it is often advisable to have two supporting affidavits - one from the attorney and another from the client. One critical function for the supporting affidavit is to affirm that the party in default is not a minor, incompetent, or in the military. Another core use for a supporting affidavit is to supplement the record, particularly where the complaint was not verified. A valid and well-supported affidavit may avoid the need for an evidentiary hearing.

If applicable, make sure a request for fees and/or costs is properly supported
Some jurisdictions will allow the attorney's supporting affidavit to include the support for the fee request; other jurisdictions may require a separate application for attorney's fees. Likewise, some jurisdictions will permit the attorney's supporting affidavit to include the support for the requested costs while others may require a formal memorandum of costs. Supporting documentation such as bills, invoices, and receipts will increase the likelihood of receiving an award and make the award more defensible should a challenge arise.

Be prepared to prove every aspect of your application
Some judges and jurisdictions may require prove-up hearings as a matter of course. However, if the court orders a hearing, it can be an indication that the court has some concerns with your application. If at all possible, try to obtain some guidance from the court in advance of the hearing. The best course of action is to err on the side of caution and be prepared to prove every aspect of your client's damages, costs, interest, and attorney's fees.

Proposed default judgment
Often, courts will expressly require a proposed judgment. Even if the court does not require one, providing a proposed judgment is strongly advised. While you should not overreach, a proposed judgment can help ensure that the court makes findings that will help to oppose a motion to set aside or defend against a bankruptcy discharge. Moreover, judges and law clerks often appreciate proposed judgments; a pending application with a proposed judgment may get granted ahead of an application that requires the clerk to draft the judgment from scratch.

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About the Author

Richard D. Williamson is an associate with the law firm of Robertson & Benevento in Reno, Nevada. His practice primarily focuses on real estate law and complex civil litigation.

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