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Jack R.
Jack R., Attorney
Category: Legal
Satisfied Customers: 6147
Experience:  OH/TX Practicing Attorney focusing on Family Law, Foreclosure, Landlord-Tenant Issues.
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I am a pro se plaintiff. I have filed a motion and affidavit

Resolved Question:

I am a pro se plaintiff. I have filed a motion and affidavit for Order of default in my case. Defendants had not filed a response 36, respectively 33 days after the summons was served.
What is the next step I need to take, when can I expect a response from the court to my motion?
If the court denies the motion am I then entitled to a reason from the court.
Where can I read about the rules governing what must happen after a motion for an order of default is filed?
Submitted: 10 months ago.
Category: Legal
Expert:  Jack R. replied 10 months ago.

Thank you for choosing Just Answer. My name is XXXXX XXXXX I will assist you today.

 

I need a little more information.

 

What type of case do you have e.g. what is the case about ?

Customer: replied 10 months ago.

I would like a general answer, a non case related answer, if you don't mind. Those kind of answers are simpler for me to understand.

Customer: replied 10 months ago.

I will have to go to bed, have an early day tomorrow. I will look for your answer in the morning. Forgive me that I cannot reply back to new questions tonight.


 


Thank you.

Expert:  Jack R. replied 10 months ago.

In general once you have filed you motion and properly served the defendant the court can immediately issue an order for the damages you specified. Depending on how busy the Court is this can take a couple days to a couple weeks. You can call the Clerk's Office to see where your order is at, or you can call the Judges Clerk/Bailiff to see what the status is.

 

The Court can also decide to hold a hearing for you to prove your damages. After the hearing the Court will issue and order for the proven damages.

 

The defendant can file a motion to vacate the order, and a judge will schedule a hearing for the defendant to explain why the motion should be vacated and the defendant allowed to answer the complaint.

 

If a Court denies your motion they will typically give you a reason. I t will probably be terse saying something like "Failure to Serve Defendant", " Filing less than 14 days from answer due date", or may state hearing required.

 

As far as a procedure there is not much other than file the motion for default. There is more procedure surrounding vacating a motion for default.

 

Please accept my answer with a rating of 3 or better so I may get credit for my response. If you have follow up questions please ask. Please note that paying the deposit does not cause funds to be disbursed until you rate my response (3 or greater).

Customer: replied 10 months ago.

Thank you for being patient with me yesterday, I had a 4am meeting.


Back to the question at hand, and thank you for your answer so far.


 


I filed a motion for default order on October 15. Later that same day I filed a motion for default judgment.


 


The defendant filed filed an objection to my motions, and at the same time he filed a rule 21 motion for me to make my complaint more definate and certain.


 


Yesterday I still had not received an answer. and thefore I went to the court and got the list of filings for the case. My motion for default order was listed on the listing as not having been filed. This morning I called the court and they confirmed that the judge had received my motion for order. I was told that it would not be ruled on till AFTER the hearing for the Rule 21 motion to make the complaint more definate and certain.


 


Now my question is; Is it normal procedure that a rule 21 motion filed AFTER my motion for Order of default is heard BEFORE my motion is ruled on?


It seems to me that my motion for order of default should stop the case and thus relieve me of having to file an answer to the rule 21 motion for making my complaint more definate and certain.


 


I am not in a hurry, and I can make my complaint more definate and certain.


My question is entirely asked to get an idea of what is the"normal" and whether I am getting biased treatment.


 


Everything I have read indicates that the judge will answer the motion for default order within a few days. The day I handed in the motion for default order the clerk told me that the judge would decide right away if I would wait. They instructed me to deliver it at the judges chambers, doing so I was told that the judge would look at it and get back to me. The judge never did get back to me.


 


I do not know this for certain, but have been told that the judge is a friend of the defendant. (this is a small town.)


 


Thank you for your thoughts on this.

Expert:  Jack R. replied 10 months ago.
The rule 21 motion effectively is telling the judge that an answer could not properly be formulated based on the complaint. The motion is a responsive pleading to your complaint and a default cannot be entered if the motion is determined to be timely. If the judge accepts the pleading for a more definite statement as timely the judge would allow additional time for your response and answer

Even if the Judge ruled in your favor a faulty complaint could be the basis for an appeal, something Judges do not want to see happen. This is one reason why he wants to review the Rule 21 filing.

The other problem is that court's do not like default judgments. It takes very little justification for a Judge to grant an extension of time. This does vary with the Court, and the Judge. The rules state for good cause shown a judge can extend the time to reply. The motion for more definite statement may be the "good cause shown".

An other consideration is that when multiple motions arrive in the same time frame a Judge will look at them at the same time. What the Judge does not want to happen is to rule in your favor and then determine the order should be vacated based on the defendant's objections (which are considered at the same time as your motion), and a motion identifying that the complaint is deficient.

I have been in some Courts where the judge warns the parties if a pleading is filed one day late then the judge will dismiss the case or take other appropriate sanctions. I have been in other Court's where a judge has vacated a default judgment and allowed the defendant to plead.

If the judge is know to the Defendant he may be inclined to allow a little more leeway.

Please accept my answer with a rating of 3 or better so I may get credit for my response. If you have follow up questions please ask. Please note that paying the deposit does not cause funds to be disbursed until you rate my response (3 or greater).


Customer: replied 10 months ago.

Jack,


 


Sorry for the delay in returning to this matter, I will certainly give you top ratings, I was very satisfied with the amount of time you already gave me.


I had follow up questions and did not have time/opportunity till today to get to a computer.


 


If it is OK here are my questions;


 


The rule 21 motion filed by the defendant was not related to the request for default order, the rule 21 motion was related to making the complaint more definite and certain.


Defendant responded to my motion for default order with a number of objections, the main objection being that he had talked to me on the phone the month before and had requested, at that time, that I make the complaint more definite. This reply is NOT named a rule 21 motion, is it still a rule 21 motion if this term is not used on the objections?


 


The reason I ask is that I may be creating a storm in a glass of water; The notice that I have gotten from the court is stating that the hearing is scheduled for a motion 21, and since defendants objection to my motion for default is not named Rule 21 I perceive that as it is the Rule 21 motion to make more definite and certain that will be heard at the scheduled hearing.


(some years ago I was represented by an attorney. My attorney had filed a rule 21 motion. The judge overlooked that the Motion was properly named Rule 21, and almost threw out the case due to this issue, it was not till after his attention was pointed to the fact that "Rule 21" was actually in the name, jst not in the first line of the title.)


 


As I understand your answer you are saying that; if my complaint is not well founded then it overrides not replying timely to the complaint is that correctly understood?


 


I was in the process of preparing my request for production and admissions the night I discovered the complaint had not been replied to in time.


If I now file my request for production, my request for admissions, a motion for summary judgment and an amended complaint will I then somehow hurt my request for default order and motion for default judgment?


 


If the judge does not give me the default judgment I will certainly appeal the decision because of how the ORCP for default judgments read. Where can I read the rules related to appealing.


 


If I have to restate these questions in a new request I can certainly do so.


 


 


 


 

Expert:  Jack R. replied 10 months ago.
With a determination your complaint is vague and not specific come the implication that a valid response is not available until more clarity is achieved. Responding to a complaint with a motion for more definite information is allowable and prevents a default.

If you file an amended complaint the clock starts over, and the defendant will have the full prescribed time interval to respond to your amended complaint. This would trigger a denial of your motions for default judgment.

I would prefer responding to you appeals question in a separate thread so we can continue the dialog on the complaint and rule 21 situation if necessary. Put for JackR in the subject.

ease accept my answer with a rating of 3 or better so I may get credit for my response. If you have follow up questions please ask. Please note that paying the deposit does not cause funds to be disbursed until you rate my response (3 or greater).
Jack R., Attorney
Category: Legal
Satisfied Customers: 6147
Experience: OH/TX Practicing Attorney focusing on Family Law, Foreclosure, Landlord-Tenant Issues.
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