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Common Questions About Default and Default Judgments

Contents

    This is a list of common questions about default and default judgments. 

    Questions about Default and Default Judgments

    What is default?

    Default is a finding by the court that you did not do something you were supposed to do. The court can find you in default if you didn’t answer a complaint by the deadline. You can also be found in default if you didn’t follow a court order. If you missed a hearing or court-ordered payments, you didn’t follow a court order.

    You must have the default set aside before you can do anything else in the case. Read the article Setting Aside a Default or Default Judgment in Collection Cases to learn more.

    If you are in default, the other side can request a judgment. Once the court has entered a judgment, your creditor can collect the judgment by garnishing you. This lets the creditor take the money directly from your bank account or paycheck. Your creditor might also legally seize your property.

    What is a default judgment?

    A default judgment is an order from the court that says you owe your creditor the full amount of the claim. It can only be ordered after you have been found in default. Your creditor must ask the court to issue the judgment against you.

    Once the court has entered a judgment, your creditor can collect the judgment by garnishing you. This lets the creditor take the money directly from your bank account or paycheck. Your creditor might also legally seize your property.

    Read the article Setting Aside a Default or Default Judgment in Collection Cases to learn more.

    What is the difference between a default and a default judgment?

    A default is a finding in a case before a judgment is entered. If you are in default, the other side can request a default judgment.

    A default judgment is a final order from a judge. Once the court has entered a judgment, your creditor can collect the judgment by garnishing you. This lets the creditor take the money directly from your bank account or paycheck. Your creditor might also legally seize your property.

    Read the article Setting Aside a Default or Default Judgment in Collection Cases to learn more.

    Why was a default entered against me?

    A creditor can ask the court to find you in default if you don’t respond within the time limit to any of the following:

    • The creditor's complaint
    • The creditor's counterclaim
    • The creditor's cross-claim
    • The creditor's third-party complaint

    A creditor can also ask the court to find you in default if you don’t do something the court orders you to do, for example:

    • Come to a hearing
    • Answer a discovery request
    • Make court ordered payments

    Read the article Setting Aside a Default or Default Judgment in Collection Cases to learn more.

    What can I do if there's a default or default judgment in my case?

    You can ask the court to set aside your default or default judgment by filing a Motion and Affidavit to Set Aside a Default. Use our Do-It-Yourself Motion to Set Aside Default (Consumer Debt) to create yours.

    To get a default set aside, you must have good cause for not answering or going to court. Good cause is a reason you didn't respond to the suit or do what you were supposed to do.

    You will also have to explain your defense to your creditor’s complaint and show why a judgment shouldn’t be entered against you.

    To learn more, read the article Setting Aside a Default or Default Judgment in Collection Cases.

    If you agree that you owe the debt, you can let the default judgment stand and arrange to pay it.

    How do I file a Motion and Affidavit to Set Aside Default?

    After the court enters a default or a default judgment against you, you can’t take any action in a case until you have it set aside. Read the article Setting Aside a Default or Default Judgment in Collection Cases to learn when and how to ask the court to set it aside.

    You can use our Do-It-Yourself Motion to Set Aside Default (Consumer Debt) to create your motion. Then use the Checklist at the bottom of the Toolkit Setting Aside a Default or Default Judgment in a Debt Collection Case.

    What is “good cause” for setting aside a default or default judgment?

    “Good cause” is a reason for not responding to a complaint or appearing for a hearing. You must explain the reason in your Motion & Affidavit to Set Aside a Default. The court will decide if your reason for not answering or appearing is good enough to set the default aside.

    You might have good cause if you:

    • Didn’t get a copy of the complaint or weren’t notified about a hearing
    • Got the complaint and have a good reason for not answering it; or
    • Were notified of the hearing and have a good reason for not going to it

    When you file a Motion & Affidavit to Set Aside a Default, the judge may want to see proof of your cause.

    Read the article Setting Aside a Default or Default Judgment in Collection Cases to learn more.

    What is a “meritorious defense” when asking to set aside a default or default judgment?

    A “meritorious defense” is the reason you should have your day in court. It means you have a defense, a reason your creditor should not win. You must explain this reason in your Motion & Affidavit to Set Aside Default.

    This might be that you already paid some or all of the debt or never owed it, or that the creditor had forgiven the debt. If the judge grants your motion, you will then be able to argue this defense at your trial to try to convince the judge or jury that you don’t owe some or all of the debt.

    How much does it cost to file my motion to set aside a default or default judgment?

    There is a $20 dollar fee to file your Motion & Affidavit to Set Aside Default. If you qualify, you can ask the court to waive your fees by filing a form called Waiver/Suspension of Fees and Costs. You can use our Do-It-Yourself Fee Waiver to complete the form.

    I filed a Motion and Affidavit to Set Aside Default. What happens next?

    When you file your Motion and Affidavit to Set Aside Default, you will get a hearing date and time from the court clerk.

    At the hearing, the judge will grant or deny the motion.

    If the judge grants your motion, the default or default judgment will be set aside, and the case will move forward. You will need to attend all hearings and respond to any documents you get from the court or the other side.

    If your motion is denied, the default judgment stands and you must pay the judgment. Your creditor may be able to collect the judgment by taking the money from your bank account or paycheck. This is called garnishment. The creditor could also seize your property.