Defaults, default judgments, and summary judgments

Posted by begoodorelse (172.174.213.83) on October 14, 2003 at 14:37:35:

In Reply to: Summary Judgements posted by Bob3 on October 10, 2003 at 14:21:47:

Since I happen to be a lawyer who loves to sue collectors, lemme fill you in briefly, not intended as legal advice because I'm only admitted in FL and NC:

If they don't file an answer or respond by the time given, 20 days in FL and 30 in NC, then you can go right back to the clerk's office on day 21 or 31 with an affidavit of service of process and a motion for clerk's default. If they haven't filed anything, you get a "clerk's default", NOT the same as a default judgment. A clerk's default typically means they can no longer contest liability (claim they didn't do what you said they did) unless they get the default vacated for good cause. NC is really reluctant to find good cause--you snooze, you lose.

Once you have a default on liability, then you have to prove damages before the judge/magistrate/JoP. Probably you'll have to notify the defendants of the prove-up hearing, but if they're too lazy/arrogant to answer the complaint, they might not show up for a hearing either.

If they DO answer the complaint, then at some point before trial but after you've all had the chance to do discovery (get documents and take depositions, though depos probably won't happen in small claims), both parties have an opportunity to move for summary judgment. You can only do this if the facts are not in dispute. If you swear the CA called you a no-account loser and threatened to arrest you, and the CA swears right back they did NOT say that, then that's a disputed fact and has to go before the judge or jury. But if you have them on tape saying that, then there's no way you can lose because that is a slam-dunk FDCPA violation and the only question is damages. Then you would ask for "partial summary judgment" on liability. Summary judgment is a filtering device that saves on unnecessary court time. Judges would rather toss the SJ papers to their law clerks (if they have one) to decide and leave early instead of hashing it out in court. Taxpayers and jurors like that too.

Oh yeah, in small claims court, at least in NC, when you file the suit, you get a court date pretty soon, and instead of the defendant filing an answer like they would in a big case, everybody just shows up for trial. If you are in court when you're supposed to be and they aren't there, you win, ta-da. But to file in small claims, the defendant probably has to actually live in the county where the court is. If so, just go up to the next higher court and sue away. Hope it turns out well.

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