Imagine trying to buy a house only to have your mortgage lender deny your application due to an outstanding judgment. You are shocked. You had no idea the judgment existed. Upon further investigation, you discover that it is actually a default judgment. Now what do you do?
Default judgments are not particularly rare. According to Salt Lake City’s Judgment Collectors, default judgments are more common than people realize. They can be entered against defendants for a number of reasons. They also can be fought under certain circumstances.
More About Default Judgments
A judgment is the result of a civil trial in which a verdict is entered against the defendant. So for instance, consider a consumer who allows three or four months of utility payments to pile up. The utility company files a complaint in civil court in hopes of recovering what is owed. Should the utility company win the case, a judgment equaling the amount owed (plus court costs in most cases) is entered against the consumer.
What if the consumer doesn’t appear in court to plead his case? The utility company’s attorney can request that a default judgment be entered. Should the court agree, it passes a verdict in favor of the plaintiff and automatically awards the requested judgment. Default judgments are legal because defendants were given the opportunity to plead their cases but failed to do so.
Fighting a Default Judgment
Though convincing a court to vacate a default judgment is difficult, it is not impossible. Default judgments can be fought when defendants and their attorneys believe they have a solid case. The question is, under what circumstances do they have a solid case?
State laws vary, but there are four general scenarios under which a default judgment can be successfully vacated:
1. Excusable Mistake or Neglect
There are times when defendants do not appear in court for reasons that are, in the eyes of that court, excusable. Let us say the fictional consumer in our previous example was severely injured in a car accident the morning of his court appearance. The accident may not be known to the court until days later. Obviously, the defendant could not appear in court while in the ICU recovering from his injuries. His absence would be considered excusable inadvertence.
2. A Failure to Serve
Civil cases follow a strict set of rules as they proceed. When a complaint is first filed in court, the defendant must be served with a summons to appear. Most states require that summons to be delivered personally to the defendant. If delivered in any other manner, the defendant may be able to claim the rules were not followed, providing grounds for vacating a default judgment.
3. Misrepresentation or Fraud
It stands to reason that any provable misrepresentation or fraud on the plaintiff’s part is grounds for vacating a default judgment. The key word is ‘provable’. The defendant’s attorney has to be sure that the misrepresentation or fraud is backed up by evidence.
4. Satisfaction or Discharge
Finally, a defendant can request a default judgment be vacated if he can prove that the judgment has already been satisfied or discharged. Using the previous example again, perhaps the consumer paid his bill just prior to the court case but his payment wasn’t posted until a day or two after. He still satisfied the debt on time.
Default judgments can be vacated under certain circumstances. However, convincing a court to do so is not easy. Defendants and their attorneys have to have ample evidence. They also must have all their ducks in a row.
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