1. Who Is at Risk of a Default Judgement?
2. Why it's One-Sided
3. Results Vary by State
4. Affidavit of Service
5. Having a Default Judgement Set Aside
6. Voluntary Repayment
7. Why A Defendant Should Negotiate Before the Garnishment Order
8. Things to Consider When Offering to Settle a Debt

The default judgement definition states that one party in a legal suit has lost the case by failing to appear at the scheduled court hearing. When this happens, the party that is present has the right to request a default judgement from the court. If a complaint for damages was included, the court considers granting those damages unless it's a situation where proof is required.

Who Is at Risk of a Default Judgement?

Usually, the defendant who doesn't answer a complaint is the party at risk of getting a default judgement against him or her. However, the plaintiff can also face the risk of having a default judgement in some circumstances. When this happens, it's because the defendant files a counterclaim and the plaintiff doesn't answer it, making the defendant the recipient of a default judgement.

Why it's One-Sided

When only one party presents evidence, it can lead to a default judgement. With only one part providing evidence, the judge doesn't get the chance to hear both sides of the story, so the party that appears and shares evidence wins by default.

Results Vary by State

Not all states in the US handle default judgements the same way. Procedures for granting or denying a default judgement also vary by State, Federal, tribal, and administrative agencies. Many default procedures, however, are based on Rules 55 and 60 of the Federal Rules of Civil Procedure. Also, under Federal Rule 37(b)(iii), a plaintiff who backs out might be ruled to be in default if he or she:

  • Fails to cooperate with court orders.
  • Fails to respond to a discovery request.
  • Doesn't provide proof that the defendant was given proper service of process.

Affidavit of Service

An affidavit of service, or proof of service, is the document the court uses to confirm the defendant has been properly served notice of proceedings. The affidavit usually states that the defendant was served the necessary paperwork, and an oath of penalty or perjury is required. The affidavit details:

  • The defendant's name.
  • How the papers were served.
  • Who served the papers.
  • Where the papers were served.
  • When the papers were served.

Having a Default Judgement Set Aside

After a default judgement has been issued, having it set aside is a complicated process because judges don't like to change decisions after the fact. If the defendant was improperly served or can prove the plaintiff is suing the wrong party, there is a chance the court may reconsider the default judgement. If you don't have a valid reason to have a judgement set aside or your request is denied by the court, it's often advisable to arrange a settlement with the plaintiff.

Voluntary Repayment

Checking with the creditor's attorney to see if voluntary repayment plan or even a lump settlement agreement is acceptable can be a better option after a default judgement has been issued. Defendants will usually find attorneys agreeable to hearing reasonable offers because they can then collect their earnings without investing more time and money pursuing an order to garnish the defendants wages.

Why A Defendant Should Negotiate Before the Garnishment Order

The defendant loses any leverage he or she originally had after a judgement has been entered. After the judgement has been entered, the creditor, or plaintiff, has already gone through the expense and time of the legal process, so he or she is less likely to agree on a lower amount to settle the debt.

Things to Consider When Offering to Settle a Debt

It's important to understand your budget when offering to settle a debt so you know how much you can realistically offer as a lump sum payment or for monthly payments. Making a lump sum payment that covers a bigger portion of the debt lets you settle it faster and possibly for a lower amount than if you opt to make monthly payments. If a lump sum payment isn't an option, paying off the judgement in monthly installments means you will probably be required to pay the full amount.

One final way to choose how to pay a judgement against you is by calculating how much your creditor would get each month by pursuing wage garnishment against you. For people with a very low income, the monthly amount may end up lower than the creditor is requesting.

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