Lawsuits can be unexpected and overwhelming. It is not uncommon for a debtor-turned-defendant in a lawsuit, with their hectic schedule of work, family, and other obligations, to completely miss that they’ve been sued, particularly by a judgment creditor.
Another piece of mail holding a citation and petition from a Texas court goes into a pile of coupons, bills, magazines and suddenly, the deadline for answering the complaint has come and gone. This leaves you vulnerable to a default judgment. But don’t panic!
If you have received a default judgment, a skilled Houston judgment defense attorney can help you navigate the next steps. We walk through these steps from the perspective of both the plaintiff and the defendant in this article.
A default judgment is a judgment entered in the trial court when a defendant hasn’t filed a response in a timely manner. For a response to be timely, it must be made by 10 a.m. on the Monday following the expiration of 20 days after the date the defendant was served with the citation and petition.
These timeframes apply if the lawsuit was filed in a Texas District Court. If the defendant was sued in a Justice of the Peace Court, the defendant must file an answer by the end of the 14th day after the day the defendant was served with the citation and petition.
Another circumstance where a default judgment can be entered against the defendant is if the defendant filed an answer and was then given a hearing date but did not attend the hearing. In this case, the court can receive evidence from the plaintiff either on the hearing date or by way of motion and enter a default judgment.
Texas Rule of Civil Procedure 21 governs motions in general and permits a litigant to ask the court for any type of relief that is available, including the granting of a default judgment.
A motion for default in Texas can be filed by the plaintiff if the Court doesn’t automatically enter a default judgment after the defendant either fails to answer or fails to appear. The motion should include an affidavit of material facts and any supporting evidence, such as proof the complaint was served on the defendant and proof of damages.
The plaintiff should also include a proposed order which is ready for the judge to sign and enter. Texas Rule of Civil Procedure 736 provides additional specifics on filing motions for default judgment.
Texas Rule of Civil Procedure 21 governs motions in general and permits a litigant to ask the court for any type of relief that is available, including the granting of a default judgment.
The Texas Civil Court Rules govern what should be included in your motion packet, but will generally require a sworn statement of facts known as an “affidavit,” a proposed order for ready entry by the court, and an explanation of the legal relief you are seeking citing the applicable statute, rule, or case law that supports your requested relief. A skilled attorney can help you organize the facts and the law to put your best argument for default to the Court.
The motion packet should be served on the defendant, even though they have failed up to this point to participate in the case.
Once a motion for default judgment is entered, the defendant will have an opportunity to oppose the motion with his or her own submission. The Court where the motion has been filed will review the parties’ respective submissions and render a decision either from the submissions on their own (sometimes called a “decision on the papers”), or from representations made by the parties after calling them in for a hearing. The Court will then decide to either grant or deny the motion for default judgment.
A default judgment is usually final because it disposes of all parties and all claims with the intent to fully and finally resolve the disputed issues between the parties. First National Bank v. Villgomez, 54 S.W.3d 345, 348 (Tex. App. – Corpus Christi 2001, pet. denied).
If the judgment does not dispose of all claims, it may instead be called an “interlocutory” judgment, which provides different avenues for appeal. For a plaintiff to avoid receiving anything less than a final judgment, it is strongly suggested that the plaintiff work with a skilled attorney familiar with default judgments.
If the default judgment is still at the motion phase, a defendant may want to draft and file opposition to the motion for default judgment. The strongest evidence that the motion should be denied is proof that the defendant answered the complaint or actually attended the hearing date, or otherwise intends to actively defend in the case going forward either as a “pro se” or self-represented litigant or with the assistance of an attorney.
Yes. By its very design, a default judgment is a judgment entered in the trial court when a defendant (you) hasn’t filed a response in a timely manner. If you failed to respond to a complaint in a timely manner, the odds are you may also be unable to respond to the motion for default which follows.
Note that not receiving notice of the lawsuit is very different from intentional indifference or a conscious decision to avoid the lawsuit that kept you from participating in the case. In most cases, a defendant will be sent notice, but they may not realize it.
This is the time to seek the help of an attorney! Otherwise, the court can hear the default motion of the plaintiff and enter a judgment against you without you even knowing it has occurred.
Once a judgment is obtained, a plaintiff can immediately start the process of enforcing it, including filing an abstract of judgment, which permits judgment liens on real and personal property, and a writ of execution, which can be used by the sheriff to seize equipment, inventory, or cash belonging to the defendant to satisfy the judgment amount.
To satisfy a default judgment, a creditor can begin collecting a judgment in Texas by seizing any property that does not meet the exemptions laid out in Texas Property Code §42.002. This includes real estate holdings outside of the homestead, cars, trucks boats and other vehicles besides the primary vehicle, jewelry, collectibles and memorabilia.
Although wages themselves are not directly seizable, income that is deposited by an employer into a bank account can also be seized, once it posts to the account.
There are several ways to appeal a default judgment for a defendant.
One of the most frequently utilized routes is filing a Motion to Set Aside Default Judgment, which must be filed within 30 days of the default judgment being entered. To succeed, you will need to show good cause that you either: did not receive notice of the lawsuit or missed the answer or appearance deadlines by accident or mistake and that cancelling the default judgment will not work an undue prejudice against the plaintiff, delay the case for an unreasonably long time, or otherwise cause harm.
Note that if you are claiming a mistake or accident, it is critical to show that it was not an intentional indifference or conscious decision to avoid the lawsuit that kept you from participating in the case. The Court is forgiving under the good cause standard, but less forgiving when its procedures are disrespected by litigants. Choice of words matter.
A second option in Texas is a Motion for a New Trial after default judgment, which seeks that the judgment of default be vacated for the same reasons as a motion to set aside default. This is a way to completely vacate a default judgment in Texas.
Both motions should argue that the failure to respond or appear 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).
Filing a Restricted Appeal is different than explaining the failure to respond as a mistake or accident; rather, this appeal is a direct attack on the judgment rendered against you.
The timeframe is longer for this type of motion – 6 months from the entry of the default judgment – which can be helpful if you have missed the window for filing a motion to set aside default or for a new trial and you have valid grounds for an appeal. The standard for the appeal is a showing of clear error in the process.
A Bill of Review is an equitable action brought by a party to a former action seeking to set aside a judgment that is no longer appealable or subject to a motion for relief. The statute of limitations governing a bill of review is the longest of all the forms of relief possible from a default judgment – 4 years. Usually, a Bill of Review is filed because the defendant was never served with the lawsuit. This requires almost irrefutable proof.
If you don’t meet the criteria for filing one of the motions or appeals set forth above, you can consider making an offer to settle the judgment. Your leverage may be that the creditor knows that even with a judgment, it will take a long time to work through the courts to attach liens to your property or garnish your wages, and this may allow you a chance to make a one-time offer for less than the amount owed that will actually be more cost-effective for the plaintiff than taking steps to enforce outstanding judgments.
When settling a debt, you need to establish a budget of what you can do either in a lump sum or on a monthly basis. Generally, the more you can pay up front, the smaller the amount that the judgment creditor will be willing to settle for.
If you do not think you will ever be able to pay the judgment amount, or there are other judgments, debts, or financial issues working against you in the big picture, you may be considering filing for a Chapter 7 personal bankruptcy. This may discharge some or all of your debts, and is one of the only examples of how to not pay a judgment.
There are credit consequences, but the process allows many debtors a chance at a debt-free future. Consider speaking with a qualified bankruptcy attorney about your options.
If you wish to know more about default judgments in the State of Texas, you will need a lawyer with specific experience with default judgments, and who has the right knowledge and resources to help protect your rights. Contact the Law Offices of Seth Kretzer online today to discuss your case.
Mr. Kretzer is on your side and knows how to pursue justice on your behalf. Additionally, he has experience working with Texas judgment cases on behalf of both plaintiffs and defendants. He truly understands your situation and will do everything in his power to help you!
