If the Defendant is a No-Show

Find out what happens if the party you sue fails to show up at court

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If one party to a case doesn't appear in court on the proper day at the proper time, the case is normally decided in favor of the other. Before doing so, the judge will verify that the defendant was properly served with court papers and that neither party requested a postponement.

Don't rely on a second chance. In some states, if neither party appears, the judge may take the case "off calendar," meaning the case is delayed until a future date. Don't count on it, however. Make every effort to show up or notify the court clerk if you are unavoidably detained.

If the plaintiff appears but the defendant doesn't, the judge in most states normally will ask the plaintiff to state briefly the basic facts of the case and present any important written evidence, such as a copy of the written contract at issue. In the few states that require a defendant to file a written answer, the plaintiff should be able to find out before the court date whether the other side is planning to appear. If you ascertain ahead of time that the defendant is not going to appear, you will want to know what, if anything, you must do to get a default judgment.

Don't expect to win just because your opponent failed to appear. The law requires that you give enough evidence to show that the defendant actually owes you money.

Because the defendant is not present to contradict anything you say, the judge usually will rule in your favor as long as you state the bare bones of a valid legal claim. The defendant has no right to appeal this judgment in most states, unless the judge decides to reopen the case by vacating the default judgment.

If the defendant isn't present, a judge only wants to hear the basic facts necessary to support a judgment in your favor. You do not need to make an extended argument, because in the absence of your opponent the judge will assume your version of what happened is true.

EXAMPLE: "Your Honor, I own the Racafrax Auto Repair Shop. On January 11, 20xx, I repaired defendant's 2009 Honda Civic. He paid me $500 and agreed to pay another $500 on March 1. He has not made the second payment. I have copies of the contract defendant signed and of several unpaid bills I sent him. I am asking for a judgment of $500 plus $55 for my court filing fee and the cost of having the papers served."

If you are the defendant in a case where a default judgment was entered against you and you have a good excuse for failing to appear at the hearing, you can ask the judge to retract the judgment. This is called "setting aside the judgment" or "vacating the judgment." Courts are not very sympathetic to setting aside or vacating a default judgment unless you can show that the original papers weren't properly served and that you didn't know about the hearing. In some states, this can happen if someone signs your name for a certified letter and then doesn't give it to you. In all states, it can occur when a dishonest process server doesn't serve you, but tells the court otherwise. As soon as you find out that a default judgment has been entered against you, call the court clerk. It doesn't make any difference if the hearing you missed was months before, as long as you move to set it aside immediately upon learning about it.

If a default judgment has been entered against you after you were properly served, you will face an uphill struggle to get it set aside. A few judges will accept excuses ("I forgot," "I was sick," "I got called out of town"). Generally, however, judges assume that you could have at least called, or had a friend call, no matter what the emergency, and they will not vacate the judgment except for an extremely good cause.

To set aside a default, go to the small claims court clerk's office and ask for the proper form, which will normally be titled something like Notice of Motion to Vacate Judgment.

Sometimes the defendant files a motion to vacate a default judgment after a writ of execution to collect the small claims judgment has already been entered for the plaintiff. In most states, under these circumstances, the writ of execution will be recalled (stayed) by the court until a decision on the motion to vacate the default judgment is made. If the writ of execution has already been served as part of an effort to collect, the defendant must file a motion to suspend the writ of execution (often called a Motion to Stay or Quash the Writ of Execution), pending the court's decision on whether or not to set aside the default judgment and reopen the case. For more information on how to do this, or to find out the exact rules for your state, consult your small claims court clerk.

In most states, you can't appeal a default judgment. Unless you get the default set aside, the judgment will be final.

How to Handle a Motion to Vacate Judgment

Some judges will vacate defaults on the basis of almost any hard luck story. Others, however, will refuse to vacate a default judgment unless the defendant makes a written request for a postponement before the hearing or can show that a real emergency caused him or her to miss the hearing. An example of such an emergency might be a death in the family or never having received the original court papers and therefore not knowing a hearing was scheduled.

Because the judge has discretion as to whether to vacate a default, it's impossible to predict what any particular judge will do. For this reason, defendants should make their motion to vacate the judgment as soon as they realize they missed the original hearing.

Plaintiffs, who benefit from a default judgment and understandably would prefer it to stand, should emphasize that they played by the rules and showed up on the original hearing date, whereas the defendant failed to do so and, assuming it's true, failed to request a postponement. If the plaintiff had witnesses ready to testify at the original hearing, and these people will have a hard time coming to court a second time, plaintiffs should also mention this (and perhaps submit written statements from the witnesses).

If the small claims judge grants the defendant's motion to vacate a default judgment, then one of two things will happen. If all parties are present and agree, the small claims judge may hear the original case without rescheduling it. If, however, the plaintiff is not present for the hearing on the defendant's motion to vacate judgment, or if the parties do not agree to hear the case then and there, the judge will reschedule the hearing and the clerk will mail written notice of the new hearing date to the parties.

If the small claims judge decides not to set aside the default, defendants in most states can appeal the judge's refusal (but not the decision in the case itself) to a higher court. 

If the higher court judge agrees with the small claims court judge, then the case is over and the plaintiff wins. If, however, the appeals court judge disagrees with the small claims court judge and vacates the default judgment, and if both parties are present and agree, the appeals court judge in most states can hear and decide the case immediately. If both parties aren't present or do not agree, then the appeals court judge will order the small claims court to schedule another hearing.

Always be ready to argue your side of the actual case. If the judge decides to grant the defendant's motion to vacate judgment, the judge will ask the parties whether they are prepared to argue the underlying case. Or, if the defendant appeals to superior court and the judgment is set aside there, the superior court judge has the authority to decide the underlying small claims court case. For that reason, both parties should always be prepared to argue the case whenever they have a hearing.

by: Ralph Warner

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