If the Defendant Is a No-Show

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

If a defendant (the person or business sued) doesn't appear at trial, the plaintiff will likely win—but not always. The judge will verify that the plaintiff served the defendant with court papers, that neither party requested a postponement, and that there is some basis (evidence) supporting the plaintiff’s case before issuing a default judgment.

Proving Up a Small Claims Case

Small claims courts schedule multiple trials during the same time slot. The court knows that many cases will settle, and some will resolve by default. Those that remain will have a short amount of time to put on the case. Here's what will likely happen.

  • After arriving and checking in with the court clerk, most of the participants will likely be asked to try to work out their differences in the hallway and the court will call the default cases.
  • The judge will expect you to “prove up” your case, or present a showing of proof demonstrating that there’s a basis for your claim.
  • You’ll briefly state the facts and present any tangible evidence, such as a copy of the contract, receipts, photos, medical bills, and the like.
Because the defendant won’t be present to contradict anything you say, the judge won’t want to hear argument—just the bare bones facts and evidence supporting your claim. In the absence of your opponent, it’s likely that the judge won’t question the accuracy of your version.

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 hasn’t made the second payment. I have copies of the contract defendant signed and 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." After reviewing the evidence, the court will likely award the plaintiff a money judgment in the amount requested.

The defendant won’t have a right to appeal the judgment in most states unless the judge agrees to reopen the case by vacating the default judgment (more below).

Vacating a Default Judgment

Sometimes the court enters a default judgment that isn’t fair to the defendant. The defendant’s remedy will be to file a motion asking the judge to set aside or vacate the default. If the defendant wins, the case will be set for a new trial.

The motion’s success will likely depend on whether the defendant knew about the trial date and other pertinent factors.

  • You weren’t served. Courts aren’t very sympathetic to setting aside or vacating a default judgment unless you can show that you weren’t served with the lawsuit and 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.
  • You were served. If you received the court paperwork before the court entered a default judgment against you, you’ll 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"). However, most will assume that you could have called or had a friend call no matter what the emergency and will not vacate the judgment without good cause. Examples of good cause might include a death in the family; your unplanned hospitalization; or other circumstances beyond your control, such as flooding or a blizzard.

If a judgment creditor already received a writ of execution (the paperwork needed to collect a money judgment, although it could have a different name in your court) to collect the small claims judgment, most states will recall (stay) the writ while the motion to vacate is pending. If the creditor served the writ of execution in an effort to collect—for instance, your employer received the writ and is garnishing your wages—the defendant must file a motion to suspend the writ of execution (often called a Motion to Stay or Quash the Writ of Execution), too.

For more information about how to complete any of these steps, consult your small claims court clerk, your local self-help office, or your court’s website. Getting the ball rolling might be as simple as filling out, filing, and serving court forms.

Arguing the Motion to Vacate

As stated above, a defendant should file a motion to vacate the judgment immediately after learning about missing the original hearing. 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.

A judge won’t grant the motion if too much time elapses between the time you learned of the problem and filed the motion (your state will have a limitations period for filing the motion). Once filed, the motion will be set for a hearing before the judge.

The Hearing

Each side will have an opportunity to argue for or against vacating the judgment. The plaintiff, benefiting from a default judgment, will understandably prefer that it stands. The plaintiff will likely 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).

The defendant will present the position asserted in the motion to vacate the default judgment.

If the small claims judge grants the defendant's motion, then one of two things will happen.

  • If all parties are present and agree, the small claims judge might hear the original case without rescheduling it.
  • If, however, the plaintiff isn’t present for the hearing, or if the parties don’t agree to hear the case then and there, the judge will reschedule the trial, and the clerk will mail a notice of the new trial date to the parties.

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

Appealing the Result

If the higher court judge agrees with the small claims court judge, then the plaintiff will win, thereby ending the case. 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 don’t agree to argue the merits (the underlying dispute), then the appeals court judge will order the small claims court to schedule another hearing.

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