Personal Injury Law
Personal Injury Law Question? Ask Personal Injury Lawyers.
I've applied and been granted an application for default judgment. The defendant has been not responsive and no address or contact information is available. Is serving him with a notice of default the next step?
Response: Yes. The Court should also mail a notice to the Defendant to the address on file. However, if you do not know where the Defendant is, how are you supposed to mail the notice of default to him?
In any event, you would be letting the Defendant know that a Default Judgment has been entered against him and for him to pay up. If he ignores you, then you can file Motion for his examination to find out what assets that he has so that you can attach those assets.
Must the court clerk of the EDC sign the Judgment of Default? I tried to file it but was rejected because he did n't sign it.
" If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of the State."
Does this mean in order to do any type of accounting of assets that it must be done BEFORE the default is given?
Also, if the defendant has not made an appearance or responded in any way, does he still get the benefit of a three day notice?
Response: No. Judgment by Default may be entered by the Clerk when the Plaintiff's claim against the Defendant is for a sum certain or for a sum which can by computation be made certain, the Clerk upon request of the Plaintiff and upon affidavit of the amount due and affidavit that the Defendant is not an infant or incompetent person or an incapacitated person shall enter Judgment for that amount and costs against the Defendant, if the Defendant has been defaulted for failure to appear. In other cases, the party entitled to a Judgment by Default shall apply to the Court for Default Judgment and hearing held to assess damages before the Judgment of Default can be issued. Notice of the hearing date, place, and time must be sent to all parties in the case.
Response 2: Yes.
I tried to file a default with the clerk. It was rejected because it was not for a "sum certain" and that I must file with the judge. I have receipts and future medical estimates included. Have I missed something?
I tried to file a default with the clerk. It was rejected because it was not for a "sum certain" and that I must file with the judge. I have receipts and future medical estimates included. Have I missed something? Response: I am not sure. However, the Clerk may be rejecting your filing due to the way you filed your original Complaint with the Court. In any event, all you need to do now is to make Application for Default Judgment with the Court; file Motion for Assessment of Damages; show the Court how you arrived at the amount of damages (Memo on Damages); then get a hearing date from the Clerk's Office; do a Notice of Hearing, which is a notice to the Defendant of the place, date, and time for the hearing. File the original of the (1) Application for Judgment, (2) Motion for Assessment of Damages; (3) Memorandum on Damages; (4) Notice of Motion (5) Certificate of Service showing the date you sent a copy of filed documents with the Court to the Defendant. Send copies of (1) through (5) to the Defendant. Your case would be put on hearing calendar. You should show up for the hearing and if the Defendant does not show up again, the Court would enter the Default Judgment on your behalf.
You can get forms for filing the Application and related documents at the Courthouse in the Clerk's Office.
Thinking it was a mistake, I actually did that first. The judge granted the App. Can I call the clerk to get the hearing date? Or is that what the Motion for Hearing is?
Thinking it was a mistake, I actually did that first. The judge granted the App. Can I call the clerk to get the hearing date? Or is that what the Motion for Hearing is? Response: You have to contact the Clerk's office to get a hearing date. Then you would put that date in your Notice of Motion to inform the Defendant of the hearing. You need to then send to the Court the original of the Notice of Motion and Certificate of Service, copies to the Defendant.
Is an application for default the same as Motion for default?
This is confusing and I may have missed my own hearing.
Is a Motion, Application and Entry of Default the same thing?
Is a Motion, Application and Entry of Default the same thing? Response: Technically no. You make a Motion for Default Judgment with the Court where the sum is not certain. A hearing is required. You make Application for Entry of Default with the Clerk where the sum is certain, hearing is not required. However, whether Motion for Default Judgment or Application for Entry of Default, the Defendant must be given a notice so that he/she would get an opportunity to oppose the Motion for Default Judgment or Application for Entry of Default before the Default Judgment is issued by the Court or Entry of Default by the Clerk.
If I decide not to settle a PI case that is pending can I file bankruptcy against all of my medical providers and my attorney?