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What is a Default and Why Does it Matter?


While it is certainly true that litigation is costly and time consuming, sometimes if you are the plaintiff you can obtain early results if a “default” occurs. A default is something entered by the Court when the defending party fails so substantially to put up a defense that the Court orders a complete and total victory for the plaintiff. Most commonly, a default occurs when a defendant is properly served with a summons and complaint, and then fails to file and serve the Answer within the allotted deadline.


The party who obtains a default can then petition the Court for any and all of their damages that they can provide reasonable proof of, and this can even include attorney fees and extra compensatory damages. In such an instance, the defendant will not be afforded the opportunity to defend against such an award. This is why, if you have been sued, it is absolutely critical that you respond to the lawsuit and file an answer or at least a motion to dismiss.


By obtaining a default, the plaintiff therefore gets to sidestep the entire litigation and does not have to contend with any defenses from the defendant. Suddenly, a process that could ordinarily take several years to get through a jury trial, is instead resolved within the span of a few months and with only a handful of Court appearances.


A default judgment is the ultimate document the plaintiff wants to procure after first obtaining an entry of default. Some kinds of default judgments can even be approved by a clerk without a judge’s signature, if they are for what’s called a “sum certain.” A sum certain is easily obtained from the relevant documentation, such as a clear invoice or a promissory note. Other default judgments require additional evidence to be submitted to a judge. Compensatory breach of contract damages for, say, correcting construction defects fit into this category.


Sometimes, a default can be overcome. This is especially the case if there has been ineffective service of process. If the defendant has not been properly served with the summons, notifying them of their obligation to answer the complaint, then it is highly likely that judgment will be set aside.


In any event, the civil litigation attorneys at Asheville Legal are well versed in not only obtaining default relief where it becomes available, but also pursuing assets to eventually satisfy that default relief. Give us a call today to find out more.

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