Atty files for default judgment following answer to S&C

[bohey]

H&H in California filed suit against me. I responded with my answer in 30 days. I also advised them that I was in the midst of a "fraud" investigation since I have had mail stolen repeatedly for some years. A police report was filed as well as a notice to the Post Master General.

I was advised here on the board, that they would not pursue further action until the fraud case was resolved. Two days after the 30 days, and before the fraud case was resolved they filed a default judgment.

I need to challenge this immediately. Any advice as to how to proceed would be appreciated.

[Coltfan1972]

Reply in opposition to their motion for default, arguing everything you just put in your post, except the part about taking legal advice from this board and relying on what some unknown posters that are probably not from your state told you that you should do.

I try to give advice anytime I can, but anybody that just blindly follows it and does not get other opinions or research the advice fully, is rolling the dice and hoping it just works out.

[usagi555]

Reply in opposition to their motion for default, arguing everything you just put in your post, except the part about taking legal advice from this board and relying on what some unknown posters that are probably not from your state told you that you should do.

I try to give advice anytime I can, but anybody that just blindly follows it and does not get other opinions or research the advice fully, is rolling the dice and hoping it just works out.

Yes, always, always independently verify what somebody tells you. On top of that, there is what debt collection attorneys should do, then there is what they actually do. Most are out to win at any cost, and you'll find that includes ethics violations in many cases. It's bad enough that somebody could write a book titled "Debt Collection Attorneys Say The Darnedest Things!"

[Coltfan1972]

It's bad enough that somebody could write a book titled "Debt Collection Attorneys Say The Darnedest Things!"

Working on something similar. "Debt Collection Attorneys Get Sued for Saying the Darnedest Things"

[Guest usctrojanalum]

If you filed your answer properly and timely the Court will likely just reject the judgment on their own.

[legaleagle]

Default for what? Failure to plead? You answered the complaint, so that won't fly. Did they gvie a reason?

[calawyer]

H&H in California filed suit against me. I responded with my answer in 30 days. I also advised them that I was in the midst of a "fraud" investigation since I have had mail stolen repeatedly for some years. A police report was filed as well as a notice to the Post Master General.

I was advised here on the board, that they would not pursue further action until the fraud case was resolved. Two days after the 30 days, and before the fraud case was resolved they filed a default judgment.

I need to challenge this immediately. Any advice as to how to proceed would be appreciated.

Check the docket. The clerk will not accept a request for entry of deafult if an answer is on file. You received the request from H&H because they have to serve it on you at the same time they try to file it.

[BTO429]

Blacks legal dictionary

Judgment entered against a party who has failed to defend against a claim that has been brought by another party. Under rules of Civil Procedure, when a party against whom a judgment for affirmative relief is sought has failed to plead (i.e., answer) or otherwise defend, the party is in default and a judgment by default may be entered either by the clerk or the court.

In order for default judgment to bo entered there has to be some sort of DEFAULT on one party's' part. You answer the complaint there is no default and you should file an objection to their request stating that there is no default.

I would also say you could go as far as to file a a motion to show cause

And have the lawyer explain to the judge why he/she should not be held accountable for not following the rules of trial procedure and lack of candor before a tribunal.

Any legal aide, court clerk, attorney, paralegal, even a dang law student knows that a default can not be awarded to a party unless a default has occurred.

I would say the attorney is just trying to get a quick judgment in the case.

I would also argue that the attorney is blatantly trying to mislead the court.

[calawyer]

You don’t need to file anything (unless you discover that the court accepted the default for some reason). And Plaintiff didn’t necessarily do anything wrong. Here is what probably happened:

You filed your answer. You served the answer on them by US mail (or you forgot to serve the answer and plaintiff therefore didn’t know you filed it). Plaintiff waited 30 days, maybe even 31. Maybe looked at the docket and didn’t see an answer filed (clerks are way backed up these days so sometimes it takes forever to get a filed document on the actual docket). So plaintiff prepared a request for default and mailed it to the Court. Plaintiff served you the same day.

But when the Court gets the default the clerk will look and see if an answer has been filed. And, if so, the clerk will reject the request for default. You won’t need to do anything at all. Plaintiff will be bummed.

If for some reason there was a problem and the clerk accepts the default, you will have to file a motion to vacate. But all you will have to do is show that you filed your answer in a timely fashion. Hopefully, when you filed the answer, you had the clerk stamp an extra copy for your files. Even if you didn’t, the clerk will find it and give you a copy. Actually, the plaintiff will probably stipulate to relief from default if you can show them a copy of the endorsed-filed (stamped) answer.

So relax. Check the docket. I think you will find that the court rejected the default.