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What is a Default and Why Does it Matter?

A default most typically occurs in litigation when one party is properly served with a complaint--the document that kicks the lawsuit off--and the other party fails to answer that complaint or otherwise respond. Why is this important? Because if you manage to secure a default against the other party, congratulations! You just won the case, and you didn’t even have to go through discovery or a trial to do it.

Obtaining a default requires extreme diligence in ensuring that your lawsuit is properly served on the other party. Proving to the court that you have not failed at service of process is critical to obtaining a victory by default, as it would violate the defendant’s due process rights to obtain a default without affording them a reasonable opportunity to respond by properly notifying them of the lawsuit.

An entry of default can then be converted into a default judgment, which is a declaration by the court that you are entitled to a monetary award in the amount stated on the default judgment. At that stage, it is often quite easy to maximize your damages. This can then be taken to the local sheriff, who is authorized to seize property of the defendant and sell it at auction to obtain funds toward the judgment.

Conversely, it is absolutely critical that you respond to any lawsuit with which you have been served! If you allow the plaintiff who is suing you too obtain default relief, then they will maximize their damages against you, and will soon be having the sheriff pursue you to collect. If you had valid defenses, you no longer get to have them litigated.

There are nevertheless some limited protections available for those who claim them against a judgment. In North Carolina, up to $35,000 of equity in the home you live in can be protected from judgment, as can retirement accounts, a vehicle for you to get to work, and a baseline level of household items.

Whether you’re pursuing a default judgment or trying to stave one off, the litigation attorneys at Asheville Legal can guide you through the process and help you reach a resolution. Please give us a call today to find out more and perhaps schedule a consultation.


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