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Lucy, Esq.
Lucy, Esq., Attorney
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Experience:  Lawyer
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I am a pro se Plaintiff and I need to file a motion for default

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I am a pro se Plaintiff and I need to file a motion for default judgment in Colorado County Court. I have been advised that there are 4 different documents that need to be filed. Please confirm that the proper documents and contents of each are as follows:

1. Notice of motion - this document is to filed with the Court and served to Defendant. It can be filed at the same time as the motion itself. The purpose of the notice is simply to notify the Court and the defendant of what the motion is about.

2. The motion itself - states the name of the motion, states the statutory and case law authority briefly, states the relief requested

3. A Memorandum Brief of Points and Authorities - This document will have an introduction (states the basic claim, the procedural status of the case, the relief you are requesting, and the basis for it); the legal authority (gives the case law and statutory law for a default, give the cases that are closest in factual basis to your own); your legal argument (compare your case to the statute, and the facts in the case law you cited in your favor); and a conclusion (ask for judgment to be entered).

4. A declaration in support of motion - A declaration under penalty of perjury in which you state the facts necessary to support the motion. Any facts that you cite in your points and authorities must be introduced through your declaration (either as a direct statement, or through reference to the Court record, or a document that you can verify or establish as evidence).

My name is XXXXX XXXXX I'd be happy to answer your questions today.

It is also necessary to include a Certificate of Service, which is a short statement stating that you gave a copy of the motion and supporting documents to the opposing party (or the attorney of record where there is one), usually via first class mail, where they were sent (the address) and the date.

The certificate of service is usually printed directly on the last page of the motion below the person's signature, if there is room, or attached as a separate page. With a default judgment, all of the relevant facts are included on the docket, so any declaration or memorandum would usually be very short.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
Lucy, Esq., Attorney
Category: Legal
Satisfied Customers: 26979
Experience: Lawyer
Lucy, Esq. and 7 other Legal Specialists are ready to help you
Customer: replied 2 years ago.

Thanks, XXXXX XXXXX understand the declaration very well, could you explain what it is and its purpose. Also, do I need to give notice of a hearing of the motion, request a hearing or don't say anything about a hearing and if the judge wants a hearing, she will make that ruling?

There is rarely a need for a hearing with a default. If the opposing party objects, based on the fact that they filed an Answer to the original complaint, the judge may want a hearing. Either of you can request one. If you don't want a hearing, there is no reason to ask for one.

Usually, the purpose of a declaration is to support facts that you are asserting in the motion or the memorandum that are not already in evidence. With a Motion for Default, really all that the moving party needs to establish is (1) when the Complaint was served, (2) how it was served, (3) who served it and (4) that the opposing party did not respond. The idea is that a declaration is sworn under oath and signed under penalty of perjury, but the motion isn't.
Customer: replied 2 years ago.

Thanks, XXXXX XXXXX You helped the with this the other day. In my research, 2 questions arose. First, rather than file an answer to the amended complaint, is the defendant allowed to amend his original answer instead? And, is the laws associated with this subject of filing an amended answer the same for District Court as they are for County Court? For example, in district court a reply to a counterclaim is required, in county court a reply to a counterclaim is not required. Could the same general rule or concept apply to this situation?

Practically speaking, there is very little difference between filing an Answer to Amended Complaint and an Amended Answer. If the document addresses all of the issues raised in the Amended Complaint, the judge will allow it, regardless of what they're calling it.

The same rule that, if you deny some allegations but not others rather than entering a general denial, anything not specifically admitted is denied should apply in both courts. There isn't any special county court rule that addresses specific denials or whether a party must respond to an amended pleading.
Customer: replied 2 years ago.

Ok sorry but now i am more confused. Could you clarify, I understand that technically, an amended answer and an answer to an amended complaint is essentially the same - they are both answers. The issue is the time deadline and if it has passed. The amended complaint was granted 60 days ago, your prior statements indicate they were required to file one and therefore have admitted the new claims in the amended complaint. If an amended answer was allowed, is it true that the amended answer can only address amendments to the original complaint and not the new claims? To defend the new claims, don't they have to specifically file an amended answer to the amended complaint? It seems that their proper action would have to be an amended answer to the amended complaint and titled as such, however, the deadline to do this is past? They have had ample time to amend their original answer and have failed to do so?

What you're talking about is just a super-technicality in the name of the document. In my experience, because judges have a preference for deciding cases on the merits, I just don't think the judge would grant a judgment because they filed an Amended Answer that addressed all of the issues in the Amended Complaint. You're right - they should have titled the document Answer to Amended Complaint or Amended Answer to Amended Complaint. But if they filed something the judge isn't going to dismiss the case.

Default judgment is an extreme remedy when a party fails to respond at all. I would be very surprised if the judge granted it where a party has filed an appearance and other documents, yet not responded to an Amended Complaint. The better argument is the one you raised earlier, which is that they have admitted the allegations that weren't denied. That could be a basis for a Motion for Partial Summary Judgment, which is not the same as a default.

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