Three Ways to Survive a Default Judgment

Woman worried about financesWhat’s a Default Judgment?

A default judgment is a judgment entered by a civil court when a defendant does not respond timely to a plaintiff’s lawsuit brought against him. In most civil cases, in order for a response to be considered timely, a defendant must file with the court an answer to the suit by the 10 a.m. on the Monday following the expiration of twenty days after the date the defendant was served with the citation and petition. If the defendant fails to do so, the judge is to ensure that the defendant was properly served with notice of the suit against him, and, If service was proper, and no answer was received, the judge can enter a default judgment upon such motion from the plaintiff.

Failure to timely answer a suit is not the only way to get hit with a default judgment. Even if a defendant timely files an answer to a suit, if he does not appear for hearings or trial, the court can hear evidence from the plaintiff and render a judgment in the defendant’s absence.

Surprisingly, courts have been known to enter judgments awarding several millions of dollars to plaintiffs in cases where the defendant didn’t answer or appear in court, despite the seeming unfairness of the situation. Such cases may arise when a defendant has been served by mail but never personally received notice of the suit against him, or when someone in a company accepts service of process for the company, but the notice doesn’t get to the proper parties, such as corporate counsel, in time for a response to the suit.

You’ve had a Default Judgment Taken Against You. Now What?

If a default judgment is taken against you, you must act quickly to salvage every possibility of defending yourself against the suit and judgment. Depending on the circumstances, you can file a motion for new trial, a restricted appeal, or a bill of review. It is highly recommended that you seek counsel familiar with Texas civil procedure in doing so.

Motion for New Trial:
Through a motion for new trial, you can try to essentially vacate the judgment and get a new trial if you file a motion to do so within thirty days after the default judgment was entered. These motions should argue that the failure to answer before judgment “was not intentional, or the result of conscious indifference,” “but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.” Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). This motion should be supported with affidavits and evidence from the movant.

Restricted Appeal:
This procedure “must: (1) be brought within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who did not participate in the actual trial; and (4) the error complained of must be apparent from the face of the record.” Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).

Bill of Review:
Bills of review are equitable proceedings and require that the person pursuing the bill of review (typically a person under a default judgment) argue and present: “(1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.” Alexander v. Hagedorn, 226 S.W.2d 996, 569 (Tex. 1950). A bill of review can be filed only after the underlying judgment is final, meaning the judgment is no longer being litigated, subject to appeal, or subject to a motion for new trial.

Time is of the Essence.

Restricted appeals and bills of review are more difficult to substantiate and argue to the court, meaning that it’s in your best interest to address a default judgment within the thirty-day window following a judgment, if possible, so that a motion for new trial can be filed. Any legal counsel retained for such purpose will need time to write your motion, review documentation, conceptualize a defense to the underlying suit, and work with you in preparing an affidavit, meaning that the sooner you retain counsel to address your default judgment, the better.


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