WHAT IS NOTED IN DEFAULT?
WHAT IS NOTED IN DEFAULT?
If you were served with a lawsuit and didn’t respond the other party may note you in default and proceed to obtain automatic judgement referred to as default judgement.
This is a very serious situation. The only way to get out of this is to immediately contact a civil litigation lawyer. The reason being this is one of those things you must be proactive on.
WHAT DO I DO IF THE OTHER SIDE GOT JUDGEMENT?
If the other side, being the Plaintiff automatically received judgement you have two options:
- Negotiate the judgement;
- Bring a motion to set aside judgement
NEGOTIATE THE JUDGEMENT
In some situations it may be a productive strategy to negotiate the judgement. This may occur if the Defendant feels that the lawsuit against them has merits and that its not worth it to fight it.
MOTION TO SET ASIDE DEFAULT JUDGEMENT
This is the only other option a Defendant has. They must bring an immediate motion to set aside default judgement.
There are many variables to consider here. The Defendant will have to finance this motion. If the Defendant wins the motion the court will set aside the default judgement and the lawsuit will be rebooted. Also, the Defendant will be entitled to their costs. If the court finds that the Plaintiff acted inappropriately there may be additional costs.
If the Defendant loses, the situation will become even more perilous. The Defendant will not be permitted to reboot the lawsuit. The Defendant will also have to pay the costs of the Plaintiff for bringing the motion. Don’t forget the Defendant will still be on the hook for the original judgement.
WHEN WILL A COURT SET ASIDE DEFAULT JUDGEMENT?
Essentially, in a motion to set aside default judgement the court will look at;
- Why the Defendant didn’t respond to the lawsuit;
- How soon after being noted in default did the Defendant act;
- Did the Defendant seek legal advice;
- How soon did the Defendant schedule a motion to set aside the default;
- Does the Defendant have a real defence to the lawsuit.
While courts are reluctant to not let a party have their day in court if the above are not satisfied the court may not set aside default judgement.
This is why a motion to set aside is a matter of urgency.
WHAT IF MANY YEARS HAVE PASSED SINCE JUDGEMENT?
If a Defendant only realizes many years later that judgement was obtained against them they will have to provide a good answer as to why they didn’t know. Common explanations may be;
- They were never served with the lawsuit;
- They hired a lawyer to deal with it who didn’t;
- They weren’t residing at the address of service at the time;
- They were out of the country
Remember, whatever the explanation the Defendant should be prepared to provide documentation. If a Defendant were to argue they were out of the country and didn’t receive anything they will need to dig up any type of evidence to support their argument. For example, travel itinerary, passport, airline tickets, hotel reservations etc. Having this could convince a judge that you never received notice of the clam.
CIVIL LITIGATION LAWYER NEAR ME
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