I am a judgment broker, not a lawyer. This article is my opinion and a summary of what I have learned and observed. If you need legal advice, contact a lawyer (See our National Lawyer State Bar List).
To start a lawsuit, legal papers (called the complaint) must first be served on the defendant. The defendant becomes a debtor when a judge signs an order creating a civil judgment.
If the defendant does not provide an answer within a certain period of time, and/or does not show up on the date of the court hearing, the defendant becomes a judgment debtor, and a default judgment results.
The common sense definition of a default, does not apply in courts. Most of the time when you default, you lose. In civil court, a default is often just a second chance for a debtor to avoid paying a judgment.
A default means you won your lawsuit. At first, this is good news – the judge ruled in your favor, there were no additional delays, no extra expenses, and you did not have to hear or read the debtor’s lies in court.
However, a default judgment (where the debtor did not show up) is sometimes a hollow victory. Many debtors do not care about default judgments. Unfortunately, many debtors do not show up and make default judgments because they are poor (or hide their assets), and do not care about judgments against them.
Other disadvantages of a default judgment include:
1) If the court notice of the default does not mention a dollar amount, you must get a judge to sign your proposed order to make it an enforceable money judgment.
2) You cannot do as much pre-judgment discovery on the debtor. This means you may have to later do post-judgment discovery to find the debtor’s assets or show fraudulent transfers.
3) Default judgments are harder to domesticate (transfer) into some other states. (E.G., Connecticut, New Jersey, and New York). In New York, a new lawsuit is required to domesticate a default judgment there. Some other countries also require an expensive new trial to domesticate a default judgment. It does not matter how good the proof of service is, in NY, you must file a new lawsuit to domesticate a default state judgment in NY.
4) Most judgment debtors do not care about default judgments. If they had cared, they would have either paid you, or showed up in court to contest your complaint. If you or a judgment enforcer hires the Sheriff to take their assets, they may suddenly care very much. One way debtors may try to avoid paying a judgment is to ask the court to vacate (cancel) the judgment.
If they succeed on a motion to vacate, you lose the judgment, and have to start over with a new trial. The most important issue a judge considers on a motion to vacate, is the proof of service.
The best proof of service is when a Sheriff or a registered process server personally serves the defendant, or serves the correct person at a company. With valid personal service, attempts to have the court vacate the judgment almost never succeed.
Note the judgment debtor can also play other games, including filing an answer (e.g.) one day after the deadline, and later try to add that to their (alleged) reasons for the court to grant a motion to vacate the judgment. Judges like to give defendants extra leeway, as they want all sides to have their day in court, even if they defaulted.
You do not get to choose whether your lawsuit results in a default judgment or not. You can choose how carefully you serve the right defendant, and make sure to use a registered process server or a Sheriff, to personally serve the defendant.
Sometimes, you just cannot personally serve the defendant. In this case, you must have a substitute service done on (e.g.) their spouse, or service by publishing it in a newspaper (how obsolete). When you have a default judgment with less than perfect proof of personal service, it is considered a weaker judgment.
Among default judgments, there are two types. One type is a default judgment entered by the court that is signed by a judge that considered some evidence, including testimony and affidavits.
Another type of default judgment is one where no judge is involved, and a court clerk signs. The court clerk considers the correctness of the paperwork and if an answer was filed by the defendant or not within a time limit. A court clerk default is the weakest kind of default judgment.
One way to “clean up” a weak default judgment is to later personally serve the judgment debtor with a post-judgment document such as an abstract of judgment, or it could be a memorandum of costs, or the notice of the default judgment, or an order of examination. In California, six months after a judgment debtor is personally served, they are considered personally aware of the judgment, even if the first service on them was a substituted service. This means a they will have a very hard time convincing a judge to vacate their judgment. With default judgments, it is often a good idea to personally serve the debtor something, and wait 6 months before taking aggressive enforcement actions. This will not help in every case, because judgments can be vacated for several reasons.