When you are served with a lawsuit or complaint, it is critical to respond quickly. If you do not, you may face negative consequences, including having a default judgment entered against you. In this post, we will discuss why it is so important to respond to legal action promptly and what can happen if you do not.
If you find yourself the unlucky recipient of a Complaint in a civil matter, it is imperative that you retain a lawyer to represent you as soon as possible. Many people believe they have more time than they actually do to respond to a Complaint, while others believe that if they ignore it long enough, it will go away. The simple fact is that by procrastinating, you end up getting yourself into significant trouble.
What is a Complaint?
A Complaint is a document that initiates a lawsuit. Depending upon your state, the Plaintiff (the party suing) files their Complaint with the Court, which is then served on the Defendant (the party being sued) via mail, sheriff, or process server. Every state sets its own deadlines for the time a Defendant has to respond to a Complaint. You must respond to the Complaint within the allowed time to avoid defaulting.
What Does Default Mean
Default is when a Defendant does not respond to a Complaint within the allotted time, and the Court enters an Order defaulting that party. In other words, the Court deems that the defendant has not appeared, and by entering a default, the Court allows the Plaintiff to file a Motion for Default Judgment. While the process may differ from state to state, The outcome is usually the same. Once the default is entered, the other side can move for a Default Judgment.
What is a Default Judgment?
A Default Judgment is a formal judgment issued against the Defendant, usually granting all of the relief sought in the Complaint by the Plaintiff. A Default Judgment means that the Court grants the relief sought by the Plaintiff automatically. In other words, the Plaintiff will "win" the case simply because the Defendant failed to respond to the Complaint.
So assume that the Plaintiff seeks $100,000 in damages in his Complaint and obtains a Default Judgment against the Defendant. The Defendant is now faced with a $100,000 judgment and his wages can be garnished and his bank account frozen. Obviously, you can see how this is a bad situation to be in.
Nothing is easy, but vacating a Default Judgment can sometimes be impossible.
Is it Easy to Vacate or Default Judgment?
Nothing is easy, but vacating a Default Judgment can sometimes be impossible. Depending upon the circumstances of the Default Judgment and the timing of your Motion, a Court may refuse to vacate the default.
In order to vacate a Default Judgment, the Defendant must show (1) excusable neglect (the reason why they did not answer the Complaint on time), and (2) a meritorious defense, meaning that they can show that there is an actual defense to the claim. If both points are not established to the Court's satisfaction, the Judge will deny the motion and reaffirm the Default Judgment. The bottom line is that there is no guarantee that a Defendant who is facing a Default Judgment will be able to vacate the judgment.
Is Costs Money to Try to Vacate or Default Judgment
Filing a motion to vacate a Default Judgment is not something a person should attempt without an attorney. You will have to hire an attorney and will have to pay them to try to vacate the judgment. If the attorney is successful, he will be permitted to file an Answer and litigate the case.
If you had hired an attorney when you were originally served with the Complaint, you would not have had to incur the additional expense of filing the Motion to Vacate the Default Judgment.
Unavoidable Failures to Answer in Time
There are times when you are not to blame for failing to respond to the Complaint on time. For example, perhaps you were never served with the Complaint, or the Plaintiff served the incorrect party. In such cases, a Motion to Vacate the Default Judgment is appropriate and will likely be successful. The purpose of the Court Rule is to make sure that people who were not properly notified of a Complaint have a chance to Answer and properly defend themselves. The Court Rule does not help people who know that they are being sued and do nothing until after they have a Default Judgment filed against them.
Takeaway
Nobody wants to be sued, but if you are, DO NOT bury your head in the sand or hope that it will go away. Call an attorney before your deadline to answer the Complaint. Ignoring the Complaint will lead to a default judgment that, depending on the circumstances, could be impossible to vacate.
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As with any legal issue, it is important that you obtain competent legal counsel before making any decisions about how to respond to a subpoena or whether to challenge one - even if you believe that compliance is not required. Because each situation is different, it may be impossible for this article to address all issues raised by every situation encountered in responding to a subpoena. The information below can give you guidance regarding some common issues related to subpoenas, but you should consult with an attorney before taking any actions (or refraining from acts) based on these suggestions. Separately, this post will focus on New Jersey law. If you receive a subpoena in a state other than New Jersey, you should immediately seek the advice of an attorney in your state as certain rules differ in other states.
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