Obtaining a Default Judgment

If a party does not respond to a lawsuit, there can be serious consequences. Indeed, a party can lose a case by default if they were properly served with litigation papers and refused to respond to the litigation. Although the procedures surrounding a default judgment differ between jurisdictions, obtaining a default judgment is easier if litigants and attorneys keep a few things in mind.

Serve the Papers

It is important when obtaining a default judgment that the litigation papers be properly served on the other side. A court will usually only hold a party in default if the judge can ascertain that the defendant was properly served with the papers so that it was reasonably apprised of the litigation. Depending on the circumstances, this involves personally serving the defendant, providing the papers to someone who lives with the defendant, mailing the papers to the defendant or some other method. The process server will usually fill out an affidavit of service indicating that the party was served and the method that was used to effectuate service. It is important to review each affidavit of service to ensure that the information is accurate and will withstand scrutiny by a judge.

Provide Followup Notice

Another typical part of the process of obtaining a default judgment is to provide additional notice that a default will be taken against a party who failed to appear in a lawsuit. Courts do not like to enter default judgments, and they would prefer to have cases decided on the merits with the participation of all relevant parties. For this reason, courts oftentimes require parties seeking a default judgment to send additional notice about the default to the party in default.

The type of notices that need to be provided vary from jurisdiction to jurisdiction, but this usually requires a mailing either by ordinary or certified mail. Moreover, some jurisdictions only require this type of notice in certain situations and with certain parties such as corporations served a certain way and in other circumstances. Because the notice requirements to obtain a default judgment vary from jurisdiction to jurisdiction, it usually pays to speak with an experienced lawyer who understands the procedure for each jurisdiction and can ensure that a default judgment has the best possibility of being entered.

Motion for a Default Judgment

Oftentimes, the next step for obtaining a default judgment is to file a motion for a default judgment. In a motion for a default judgment, the party seeking a default judgment informs the court that a party has been properly served with litigation papers and they have still not responded to the lawsuit. The party seeking a default usually needs to attach the affidavit showing that service was made and include documents indicating that proper notice was provided to the defaulting party before the default judgment was sought.

It is important to note that a Court may require parties to prove other information in a motion for a default judgment. For instance, a party may need to prove that the individual to be served was not in the military since members of the armed services have litigation protections in certain instances.  Moreover, individuals may need to prove the relationship between the party served and the actual defendant if the actual defendant was not served directly. An experienced lawyer should know what information and documents must be included with a motion for a default judgment so that the default judgment is properly entered.

Proving Damages

It is next important to prove damages when obtaining a default judgment. When damages are for a sum certain, damages are easy to prove. Such instances include loans, unpaid invoices, and other clear-cut situations in which there is little dispute as to the amount of the damages owed. In such circumstances, litigants can usually use affidavits, invoices, and other supporting documents to prove damages and a court may decide the amount of a default judgment on the basis of this evidence alone. In many instances, parties may be entitled to interest, costs, and other fees associated with obtaining a default judgment from the defaulting party.

When it is more difficult to prove damages, parties may need to attend a proof hearing and furnish more complicated evidence of the nature and extent of damages. At a proof hearing, live testimony may be introduced explaining the extent of damages in a case and why a party is entitled to damages in a set amount from the defaulting party. Parties also have the opportunity to introduce contracts, invoices, and other evidence that might prove the nature and extent of damages in a give case. At a proof hearing, the Court may ask questions related to the evidence that is submitted. It is therefore important that parties and their counsel anticipate any questions they may be asked and furnish accurate and complete information so that a default judgment can be entered with as little complications as possible.

The Rothman Law Firm has experience obtaining a default judgment in a variety of contexts and opposing efforts of others to obtain default judgments against our clients. If you are looking for an experienced New York and New Jersey attorney to handle your default judgment matter or other legal issue, please feel free to contact The Rothman Law Firm to request a free consultation.