Chloe Meltzer | October 20, 2022
Summary: When you get sued for a debt, you have to respond before the deadline or the collectors can file a motion for default judgment. If granted, the default judgment gives debt collectors the right to take your money without your permission. If a default judgment has been ordered against you, use SoloSuit to file a Motion to Vacate Judgment, and give yourself another chance to Answer the case and fight back.
If you have borrowed money or used a credit card that you are unable to pay back, you may have been sued by either your original creditor or a debt collector. When this happens, you will have up to 35 days to respond to the Summons, depending on where you live. If you do not respond in time, then you will have a default judgment entered against you.
Also known as a Motion for Default, having a default judgment placed against you is a method used to expedite cases where you do not show up in court. If you are looking to get out of the default judgment, then you will need to file a Motion to Vacate Judgment.
When you are given notice of a court case against you, you will be given a specific amount of time to appear in court, as well as file an Answer to the suit. Your Summons will dictate this timeframe, but each state has a different deadline (typically between 14-35 days). If you do not respond in time, the creditor or collector will file a motion for default judgment against you.
A motion for default judgment is an official court document filed by a creditor or debt collector (known as the plaintiff to the case), notifying the court that the person being sued (known as the defendant) never responded to the case Summons and Complaint. Failure to respond opens the door for a default judgment, because the court interprets the defendant’s silence as admitting the claims being made against them.
Here is what a motion for default judgment looks like in California (note that each state’s format will vary slightly): Motion for default judgment example.
You’re probably wondering exactly what happens after entry of default. Well, we’re here to tell you that nothing good comes from a default judgment.
If granted, a default judgment allows the creditor or debt collector to collect the amount that you owe using various methods, including:
Wage garnishment is a legal procedure where your earnings are court-ordered to be withheld by your employer, to repay debt. Legally, your employer cannot fire you because of this. “Wages” are considered income, salaries, commissions, bonuses, and retirement or pension income.
Another method of collection is done by bank levy. This is essentially freezing your bank account. This allows the debt collector or creditor to freeze your account and take the amount that you owe from your account.
Finally, with a default judgment, creditors and debt collectors can also place liens on your property, making it impossible for you to sell or do anything with that property until you’ve paid off the debt.
You can protect your income and avoid a default judgment by responding to your case with a written Answer. If a default judgment has already been entered against you, there is still hope when you file a Motion to Vacate. Keep reading to learn more.
In debt collection lawsuits, it is very common for the person being sued (aka defendant) to be notified that a default judgment was ordered against them without ever even knowing about the lawsuit in the first place.
There are several reasons why someone might not respond to the a Summons for debt. A huge reason is that they are never served the court documents notifying them of the lawsuit. Creditors and debt collectors routinely fail to serve court papers properly, and sometimes they will file a false affidavit with the court claiming to have delivered the papers directly to the person they are suing.
If you never knew you were being sued, and motion for default judgment is filed against you, you should respond with a Motion to Vacate Judgment, also known as a Motion to Set Aside Judgment.
If you believe that the default judgment should not have been entered against you, then you can file a Motion to Vacate or Motion to Set Aside Judgment.. Essentially, when you file a Motion to Vacate, you are asking the court to allow you to respond to the original claims against you and fight the alleged debt.
After filing your Motion to Set Aside Judgment, you will get a hearing date and time from the court clerk. Although it is not a guarantee that the motion will be accepted, you at least give yourself a chance to plead your case.
At the hearing, the judge will decide to grant or deny the motion. If the judge grants your motion, the default or a default judgment will be set aside, and the case will move forward.
Note that each state has unique rules deadlines to file a Motion to Vacate or Set Aside Judgment. Check your state’s rules of civil procedure, reach out to the court clerk, or contact SoloSuit for more information.
Now, let’s take a look at an example.
Example: Tiffany is being sued for a credit card debt in California. She never receives the Summons and Complaint, so she doesn’t even know about the lawsuit. As a result, Tiffany does not respond to the case within California’s 30-day deadline, and the debt collector files a motion for default into the case. The motion is granted, and Tiffany doesn’t find out until months later when her wages are garnished. At this point, she uses SoloSuit to file a Motion to set Aside Judgment and an Answer to the original Summons and Complaint. The court grants her motion, cancels the judgment, and Tiffany has another chance to plead her case in court.
Each state varies in its laws, so you will need to look in the Rules of Civil Procedure for your state. Most state's rules on default judgment are based upon the Federal Rules of Civil Procedure Rule 60, therefore you should look at Rule 60 in your state’s rules of civil procedure to learn more. This federal rule states six reasons why a court can set aside a default judgment:
For whatever reason you are filing a Motion to Set Aside Judgment, you will need to take the next steps quickly. The longer you wait to ask for a judgment to be set aside after a motion for default, the less likely the court will be willing to grant it.
If you do not have a good reason for the judgment to be set aside, then you may want to look into a settlement. Settlements involve either paying off the debt in full or agreeing to pay off the debt over a specific period of time in multiple payments.
Despite this, after a Motion to Vacate Judgmentt has been refused, it can be difficult to attempt to settle the debt. At this point, you will have taken up a lot of the creditor or debt collector's time, and therefore they may be less likely to settle for a lower amount.
You will then need to decide if you can afford to settle with one lump sum or with monthly payments. Typically if you choose to settle it in a lump sum, you will be able to do so for a lower amount than if you pay it off over time.
Although bankruptcy should be your last choice when it comes to debt, it is an option. Typically if you are suffering from a variety of debt issues is the only time that you should choose to file bankruptcy.
If you do decide to file for bankruptcy then it will not only eliminate the judgment but also your other debts. It will be a serious hit to your credit and may make it difficult to buy a home or even find a rental unit.
After a motion for default is filed it means you have a judgment entered against you. At this point, you must begin responding and attempt to have the court set it aside. This is truly your only hope to begin fighting the debt once again and to avoid wage garnishment.
The best way to avoid a default judgment is to respond to your lawsuit before your state’s deadline. You should respond by filing a written Answer into the case.
Follow these steps to prepare your Answer document:
To learn more about these three steps, check out this video:
SoloSuit makes it easy to fight debt collectors.
You can use SoloSuit to respond to a debt lawsuit, to send letters to collectors, and even to settle a debt.
SoloSuit's Answer service is a step-by-step web-app that asks you all the necessary questions to complete your Answer. Upon completion, we'll have an attorney review your document and we'll file it for you.
"First time getting sued by a debt collector and I was searching all over YouTube and ran across SoloSuit, so I decided to buy their services with their attorney reviewed documentation which cost extra but it was well worth it! SoloSuit sent the documentation to the parties and to the court which saved me time from having to go to court and in a few weeks the case got dismissed!" – James
You can ask your questions on the SoloSuit forum and the community will help you out. Whether you need help now or are just looking for support, we're here for you.
Here's a list of guides for other states.
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Need help managing your finances? Check out these resources.