Life of a Case?
In the State of Georgia, the most basic life of a lawsuit looks like this:
- Complaint is filed;
- Defendant is served;
- Defendant files an Answer to the Complaint within 30 days of being served;
- Discovery; and,
What is Default?
There are a lot of ways that a lawsuit can become derailed and result in a negative outcome for either the Plaintiff or the Defendant. One of the most common problems for unrepresented Defendants is ending up in Default. If a Defendant fails to file an Answer with the appropriate Court within 30 days of being served, then the Defendant will be in Default. Default is a dangerous place to be, but it is not the end. In the State of Georgia, a Defendant has 15 days to Open Default as a matter of right and a more limited ability to open default after 15 days.
Why does Default Matter?
If a Defendant fails to Open Default in 15 days, then the Plaintiff may file a Motion for Default Judgment. If granted, then the Defendant will be held liable as a matter of law and will not be able to present evidence to show otherwise. However, there still may be a trial to determine the amount of damages that the Defendant owes the Plaintiff.
How do I Get Out of Default?
There are several ways to avoid default judgment and get your case back on the right track.
First, there could be an argument that you are not in default due to deficient service, or maybe there is still time to respond when the correct number of days to respond are calculated based on the time of service, the time of entry of service, and whether any intervening holidays, weekends, or other events require the extension of your time to file an Answer.
Second, if you are still within the 15 days that you may open Default as a matter of right then all you need to do is file your Answer and pay the costs of court.
Third, if you have failed to open Default as a matter of right within 15 days, then you may still open Default if you file a motion to open Default. This motion must (1) be made under oath; (2) include an offer to plead instanter; (3) announce ready to proceed with trial; (4) state a meritorious defense; and (5) include payment of court costs.
Once you have successfully filed a motion that includes all of these requirements, then the Court may use its discretion to allow you to open Default upon three different grounds (1) providential cause; (2) Excusable neglect; or (3) Proper case. However, there is no guarantee the Court will grant your motion.
This is the very basics of the law of Default, and it does not encompass the fine points, which take up literal volumes of books. It is important to remember that while all of these standards and requirements are wrapped up in a single word or short phrase, all of these standards have been examined and interpreted by the courts resulting in the meaning of the words being skewed over time.
As a result, it is best to seek legal representation when in Default. Even if you intend to represent yourself through the remainder of the case, it is necessary to seek assistance to successfully navigate the highly technical and caselaw intensive issues of Default.
If you are in Default, and would like assistance, please contact us and be prepared to send all of the court filings to date as this is a time sensitive issue.