Posted by Foreclosure Defense Attorney Steve Vondran on September 11, 2010 · Leave a Comment
The following is general legal information only and not intended as legal advice or a substitute for obtaining legal advice. For specific answers to your questions please consult a real estate attorney. Steve Vondran, Esq., is a real estate attorney licensed to practice law in California and Arizona. He can be reached at steve@vondranlaw.com or by phone at (877) 276-5084 begin_of_the_skype_highlighting (877) 276-5084 end_of_the_skype_highlighting. There is no representation that this article is 100% accurate or up-to-date as the law is constantly evolving.
INTRODUCTION
When we file lawsuits alleging predatory lending, truth in lending violations, RESPA violations, unfair competition, fraud, misrepresentation and the like and seeking money damages, loan rescission, quiet title and other remedies, sometimes the Defendants fail to respond. When the lenders, investors, loan servicers, MERS, or others fail to answer (which does happen from time to time) the next step is to “take a default” against them. The following is the process we normally follow in handling our cases. This usually involves two steps: (1) Filing the entry of default and (2) the “prove-up” stage. This article discusses an overview of the general process. It may vary depending on the type of case, causes of action alleged, the court’s rules, etc.
OVERVIEW OF STEPS REQUIRED TO TAKE A DEFAULT JUDGMENT IN CALIFORNIA
1. First, after the Defendant fails to respond to a complaint within the time permitted a document must be filed with the Court to get them to enter the default of that Defendant. Here is a look at the judicial counsel form we use for that purpose: http://www.courtinfo.ca.gov/forms/fillable/civ100.pdf
NOTE: If your case involves a simple contract issue, the Clerk may be able to enter that judgement. In most other cases, you will need to proceed to the steps listed below.
1. Next, after the Court enters the Default of the Defendant, within 45 days a similar application to the court is made to actually get the Default Judgement against the non-answering defendants. This application will use the same form above, except we check the “court judgment” box and “I request a court judgment.” At this point, it is also wise to check with the Court clerk to see how the judge hears default judgments. Some Courts want oral evidence for example, and some would prefer to hear the case on affidavits, declarations, exhibits, etc. and not to hear live testimony. So we check with the Court to figure this out. In Quiet Title, or Fraud Real Estate actions, it is likely the Court will at some point require an oral prove up hearing with live testimony.
2. At any rate, it is time to fill out the form and basically time to bring the evidence forward to prove the case against the non-answering defendant and to obtain a monetary judgment in according to proof and “for sums which appear just”.
NOTE: When seeking a default it is important to note that we cannot obtain a default judgment in an amount in excess of sought in the complaint and cannot add new causes of action that were not raised in the complaint. This highlights the importance of having a well-plead complaint which must also be sufficient to raise facts constituting a prima facie case as to each cause of action for the Court will not award a defaul if the facts don’t meet the elements required for a particular cause of action. HERE IS LINK TO RULE 3.1800 CALIFORNIA RULES OF COURT IN REGARD TO DEFAULT JUDGEMENTS AND WHAT IS NEEDED. http://www.courtinfo.ca.gov/rules/index.cfm?title=three&linkid=rule3_1800.
AS YOU CAN SEE THERE IS A VERY SPECIFIC SET OF REQUIREMENTS TO OBTAIN THE DEFAULT JUDGMENT INCLUDING:
● Declarations under penalty of perjury
● Any Documentary Evidence or Exhibits which which are admissible as evidence
● Case Summary
● Declaration of Counsel in support of Application for Default Judgement by Court
● Legal Basis for any Attorney Fees requested (check with the Court to see if they have a Attorney fee schedule which may set forth maximum amounts that may be requested)
● Any interest calculations such as “per diem to date of entry of judgment.”
● Memorandum of Costs
● Declaration that Defendant is non-military
● Proposed form of Judgment
● Dismissal of parties to which a judgment is not sought
● Proof of publication if the defendant(s) were served (Summons and Complaint) by publication. (ex. State in a declaration that Publication Rules were complied with).
ALSO NOTE: California Code of Civil Procedure Sectoin 587 which states:
An application by a plaintiff for entry of default under
subdivision (a), (b), or (c) of Section 585 or Section 586 shall
include an affidavit stating that a copy of the application has been
mailed to the defendant’s attorney of record or, if none, to the
defendant at his or her last known address and the date on which the
copy was mailed. If no such address of the defendant is known to the
plaintiff or plaintiff’s attorney, the affidavit shall state that
fact.
NOTE: As you can see there are very strict requirements to getting a default judgement. If certain steps in the entire process are not followed, Default Judgments, even if obtained (note there is no guarantee a default judgment will ultimately be obtained, or be obtained in the amounts requested just because the Defendant fails to appear – the case and amounts have to be proven) can be subject to appeal or collateral attack.
Local rules always come into play when seeking default judgement. Ex. Here are the local rules for Los Angeles: http://www.lasuperiorcourt.org/courtrules/ui/popup.aspx?ch=Chap9&tab=2
SOME COMMON GROUNDS FOR ATTACKING OR APPEALING A DEFAULT JUDGEMENT ARE:
(a) Court lacked jurisdiction to hear case or render a judgment.
(b) Improper service of summons and complaint (no reasonable attempt to give actual notice of the lawsuit to defendant).
(c) Complaint did not state a valid cause of action.
(d) New causes of action (not set forth in the complaint) were raised at the prove up stage.
(e) Relief requested and granted at prove-up exceeded relief asked for in the complaint.
(f) Insufficnency of Evidence that lead to Default Judgment
(g) Default was taken against Defendant (but another Defendant who answered the complaint was found not liable which would also make Defandant not liable – ex. Defendants were two partners who were sued in regards to partnership activities and the answering defendant proved there was no legal violations).
SO, THE BOTTOM LINE IS THERE NEEDS TO BE A WELL PLEAD COMPLAINT BEFORE SEEKING A DEFAULT JUDGMENT, INCLUDING SETTING FORTH THE AMOUNTS SOUGHT AND THE FACTUAL SUPPORT FOR THE CAUSES OF ACTION PLED. WHEN THE DEFENDANTS DON’T ANSWER ON TIME THERE IS A SPECIFIC PROCEDURE THAT MUST BE FOLLOWED TO TAKE THE DEFAULT AND PROVE IT UP. FAILURE TO TAKE THE PROPER STEPS AT ALL STAGES COULD RESULT IN AN ATTACK ON THE JUDGEMENT.
The Hedge 