What to Do if a Default Judgment is Taken Against You
A default judgment is a judgment that is taken against someone thatís been sued when the person sued (defendant) is served with a lawsuit but ignores the lawsuit, fails to file the proper documents (an Answer) or otherwise make him or herself known to the court.
It is a serious matter and it can result in a lien filed against you (Judgment Lien), a hold placed on your land, buildings, or other real property (an Abstract of Judgment), seizure of your non-exempt assets (an Execution of Judgment), or freezing of your bank accounts (Garnishment). If you find out that a default judgment was taken against you, you need to act quickly to try to preserve your rights!
The first thing you should do is contact a competent and experienced lawyer who can guide you through the process. Depending on the time that has passed since the judgment was taken, or from when you first learned about it, you may be able to seek a new trial, challenge the service of process (Restricted Appeal), or file other documents (Bill of Review) to challenge the judgment and have it set aside.
If not more than 30 days have passed since the judgment was signed, (or 14 days in a Justice Court), you may be able to file a motion for new trial with the trial court, asking that the court set aside the judgment. The 30 day period may be extended depending on when you learned about the judgment. Should a new trial be granted, you will then have your day in court and have the person suing you prove his/her case against you. Depending on the facts of the lawsuit, you may be able to let the court know why you should not be sued (defenses).
A restricted appeal is a way to challenge the trial courtís judgment after the time for a normal appeal (30 days in a County Court or District Court; 21 days in a Justice Court) has expired but within six months of the date of the judgment. In order to win the appeal, you would need to show that you: (1) did not participate in the hearing in which the judgment was granted, (2) did not file any post-judgment motions such as a motion for new trial described above, (3) did not file a notice of appeal within the time allowed, and that there was an error on the face of the record, meaning that it is clear from looking only at the record (the documents in the case) that there was something wrong with the judgment. An example of this type of error might be if the citation was issued to and served on the wrong person.
Bill of Review
A bill of review is the last method of challenging a judgment. This can be done up to four years after the date of the judgment. Sometimes, a person does not find out that they have a judgment against them until years later when the other party begins efforts to collect on the judgment, such as through a garnishment. This method involves the filing of a new lawsuit in the same court as the original judgment. You will be the plaintiff, and the other party will be the defendant. In order to successfully challenge a judgment using a bill of review, you must show (1) that you have a successful defense to the other partyís claims, (2) that the failure to assert your defense was caused by fraud, accident, or a wrongful act of other party, and (3) that there was no fault or negligence on your part.
However, if you were never served with the lawsuit, the law does not require that you prove that your defense is successful or that there was fraud, an accident, or a wrongful act of the other party. Additionally, proof that you were not served is enough by itself to establish that you were not at fault or negligent.
If your bill of review is successful, you and the other party will switch back to your original statuses (you as the defendant and the other party as the plaintiff) and the plaintiff will have the burden to prove his or her case as if the judgment had never been entered.
In some cases, the best resolution of a default judgment may be simply to settle the judgment. For instance, if the judgment against you is for a small amount and the plaintiffís claim against you is one for which you may not have any good defenses, it may be more cost-effective to negotiate for a settlement. This way, you may possibly pay less than the full amount of the judgment than if you were to challenge the judgment, have it set aside, and then have to defend the case.
An experienced attorney can help you determine which of these methods may apply to you and advise you on the best course of action in your case.
AUTHOR: Roger G. Jain
Copyright Roger G. Jain & Associates, P.C.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.