Responding appropriately against a default judgment
Talk about being blindsided! Your week was going great until you received notice that you have missed a court date, and now a default judgment has been filed against you. Maybe you never received the initial notice, or maybe you just plain forgot what day it was because of your hectic schedule. Doh! It's okay. There are steps that can be taken to protect your assets and ensure the judgment rendered doesn't take the shirt off your back.
First, what is a default judgment?
A default judgment is a judgment entered in the trial court when a defendant hasn't filed a response in a timely manner. A default judgment can also be entered against you if you filed an answer and were then given notice of a hearing, but did not attend the hearing.
To avoid a default judgment, one m ust file an answer to the lawsuit by 10 a.m. on the Monday following the expiration of 20 days after the date the defendant was served with the citation and petition. Or if you were sued in Justices of the Peace Court, you must file an answer by the end of the 14th day after the day you were served with the citation and petition.
Read that paragraph again! These are important deadlines that can help you avoid a default judgment.
Failing to answer by the deadline puts you at risk for having a default judgment rendered against you and will make you liable for the underlying amount of the judgment. Prior to the judgment being rendered, the plaintiff must prove that you were personally served with the suit. Following the ruling, the courts will take steps to notify you about the impending judgment.
Okay, so a default judgment has been taken against you. Now what?
First, don't panic! Second, call Cromeens so that we can help you combat the default judgment! There are several ways we can help you, namely by filing a:
Motion to Set Aside Default Judgment
Motion for New Trial
Bill of Review
Let's take a closer look at each of these actions so that you better understand your options.
Filing a Motion to Set Aside Default Judgment
A Motion to Set Aside Default Judgment must be filed within 30 days after the default judgment. To succeed on this motion, you must show good cause that: you did not receive notice of the suit; you missed the deadlines by accident or mistake; and that the cancellation of the default judgment will not cause the other party delay or harm.
Filing a Motion for New Trial
A Motion for New Trial is very similar to a Motion to Set Aside Default Judgment. The grounds for these motions are essentially the same, e.g., good cause, lack of notice, accident, mistake, but you must also show that the failure to answer the suit was not intentional or the result of conscious indifference.
Filing a Restricted Appeal
A restricted appeal is a direct attack on the judgment rendered against you. Notice of a restricted appeal must be filed within 6 months after the judgment was signed by a party to the underlying lawsuit who did not participate in the hearing that resulted in the judgment. The error complained of must be apparent on the face of the record.
Filing a Bill of Review
A Bill of Review is an equitable action brought by a party to a former action seeking to set aside a judgment that is no longer appealable or subject to a motion for a new trial. The statute of limitations governing a bill of review is 4 years.
Usually, a Bill of Review is filed because the defendant was never served with the lawsuit. This requires almost irrefutable proof. However, if you recently discovered a judgment against you from years ago, then a Bill of Review should be considered.
Take the First Step to Success
If you have a default judgment against you, act quickly and call The Cromeens Law Firm! We can help you respond in a calculated and timely manner so that the judgment can be rectified. Entrust your legal actions to our well-qualified attorneys and let our experience guide you to a successful outcome. Contact us today by calling 713-489-5792 or reach us online. We look forward to hearing from you!
This article is intended as a general educational overview of the subject matter and is not intended to be a comprehensive survey of recent jurisprudence, nor a substitute for legal advice for a specific legal matter. If you have a legal issue, please consult an attorney.