Default Judgments

There are more official Civil Procedure questions now available to work on when preparing for the MBE. With those questions comes a better understanding as to which areas the examiners like to focus on. Default judgments is one of those areas.

First, it's important to understand the difference between a default and a default judgment. When a party against whom a judgment for affirmative relief is sought fails to plead or otherwise defend (and that failure is shown by affidavit or otherwise), the clerk must enter a default. But entering a default does not equate to a default judgment.

Default judgements are a bit more complex. If the plaintiff's claim is for a sum certain (or a sum that can be made certain by computation) then the clerk, on the plaintiff's request, with an affidavit showing the amount due, must enter judgment for that amount as well as costs against a defendant who has been defaulted for not appearing. This only applies, however, if the defendant is neither a minor nor an incompetent person.

Not all of the elements above will always be satisfied. For example, there may not be a sum certain. The party must then apply to the court for a default judgment. In such instances, if the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice at least 7 days prior to the hearing on the default judgment. And a default judgment may be entered against a minor or an incompetent person only if represented by a guardian, conservator, or other fiduciary who has appeared.

The rules allow for relief from an entry of default and for default judgment. Relief requires a showing of good cause. "Good cause" is a rather broad term but some reasons to set aside an entry of default or a default judgment are that the default was not properly entered or that the required notice of the hearing for a default judgment was not timely provided.