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As I read O.C.G.A. 9-11-55 it says the default may be opened by matter of right by filing such defenses within 15 days. It also says I am entitled to a verdict and default judgement if the default is not opened within 15 days. The statute says that the default is automatic. Defendant's answer is boiler plate defenses raised except for he challenged venue because my suit is not in the county where the defendant lives. He also asserted that I did not file my notice of commencement of the suit timely. We had a hearing and all his motions were denied which gave me a green light on everything I have filed so far over the past year and 3 months. My notice of lien is still in place and the suit was allowed to continue without a transfer of venue. I don't think the defendant's attorney complied totally with what the statute says must be done. He did pay the filing fees but did not address a default or anything pertaining to opening a default. I understand the judges options as they are given in O.C.G.A. 9-11-55(b). Here it says the defendant must ask and file along with other stipulations. Also the defendant has never challenged my lien over the 365 days of time prior to the suit being filed. My root question which I will try to rephrase a bit: does the filing of a late answer and paying fees constitute opening the default or is the defendant still technically in default since they did not raise the issue within the 15 day period to do so?
Hello again.Here is the summary of useful Georgia case law on the subject:"XXXXX XXXXX served NorthPoint Group Holdings, LLC and Point Satellite, LLC (the "defaulting defendants"), among others, with his complaint for breach of contract, injunctive relief, and attorney fees. The defaulting defendants failed to file timely answers and then moved to open default after the expiration of the 15-day statutory grace period1 but before the entry of final judgment. The trial court denied the motion to open default and entered judgment in favor of Morris. On appeal, the defaulting defendants claim that the trial court erred (i) in concluding that this was not a proper case to open default and (ii) in awarding damages to Morris, notwithstanding the default. Finding that the trial court properly declined to open the default in light of the defaulting defendants' failure to provide a reasonable explanation for their failure to file a timely answer, and that the trial court correctly awarded liquidated damages, we affirm." Northpoint Group Holdings, LLC v. Morris, 685 S.E.2d 436, 300 Ga. App. 491 (Ga. App., 2009).In that case, the court found that the defendant was still in default, and a default judgment was awarded. Moreover, it is also seems clear that a motion needs to be filed by the defendant. In your case, if no motion was filed, then the defendant should still be in default regardless of the answer.Does that help?
This case lends a good deal of support to what I think is correct. However it does specifically say if they filed an answer within the 45 days or not. The statement that they did not file timely answers might suggest that they filed their answer past the statutory 30 days but not necessarily within the 45 days. This case seems to suggest that default is default unless you have a really good excuse and can convince the judge of it. I understand that this is a highly technical question unless you have been down this road before. This unfortunately is a very important one for my case. I also need to use discovery now, while I can, on the other hand. I do have some time to delay the filing if I choose to if the Defendant is truly still in default. Is it possible for you to consult another attorney in your network with the question? I can wait until tomorrow if need be.
Hello again.In Northpoint Group Holdings, LLC v. Morris, the defendant never filed an answer. Instead, the attorney filed the motion to open the default after the 45 day period. Unfortunately, I don't have enough room to paste the entire case, but here is a little more: "[T]hey do not provide an explanation why, after being properly served, the defaulting defendants failed to file an answer. Thus, the trial court, in its words, was "left to guess" whether the failure to file amounted to wilful disregard of process. The trial court did not err in concluding that the offered explanation, "t is unclear what happened," was insufficient to allow it to open the default."In your case, you said that the defendant never provided any explanation at all. Moreover, he has not requested that default be opened. Based on what I'm seeing, the defendant's attorney is not handling this correctly, and you should be awarded a default judgment.In any event, I can check with a colleague to get his take on this. I'll post back when I have a response from him, though I can't promise that he'll respond by tomorrow.
I do concur with you on your thoughts. However the fact that he did file an answer 44 days in the 45 day window might gain some sympathy from the judge but I don't think so since he missed the requirement to open the automatic default by asking and proving a justifiable excuse. This is what makes my situation different from the above case is that my Defendant did file an answer in the 45 day window. The longer I wait (within reason) to file my motion for default judgement the worse it looks for the opening of default (I think.) If you could let me know anything else I would greatly appreciate it after you confer with your colleague.
Did have any luck with an answer to my question from your colleague?
Hello again.I'm sorry to say that I'm still waiting for a response.I can open this question up here for other opinions if you'd like. I'll need to opt out.
Yes please do so as I really need an answer.