Question: My mother’s good friend and neighbor was on an extended vacation and asked if my mother could do her a favor and let someone into her garage to get some things. My mother had no problem with this, so she met the person at the house and opened the garage door.
In the garage, the person lost her footing, fell to the ground, and fractured her ankle. My mother, being in her 80s, couldn’t really help her much, but she did call an ambulance. The ambulance arrived and brought the injured person to the hospital.
About a year later, someone hand-delivered some papers to my mother at her door. It was a personal injury lawsuit against her friend, the homeowner, and my mother was named as a defendant as well. My mother called the attorney listed in the papers, who told her that she needed to be in the lawsuit because of her relationship to the homeowner. But in their conversation, the attorney mentioned that they weren’t really “after her.”
My mother took that statement to mean that she didn’t need to do anything. So she just set the papers aside and did not respond. My mother has now received notice that a court judgment is going to be entered against her.
Only now has she told me about the whole thing, and I am trying to figure out what to do to help her. What should I do?
Answer: You need to take your mother to see a lawyer right away to address this situation. Because she failed to respond to the lawsuit in a timely fashion, “default” has been entered. Entry of default against her means that her right to be heard in the lawsuit has been cut off. She will need to file papers at court to set aside the default and formally respond to the allegations, but she must act fast.
When you receive papers naming you as a defendant in a lawsuit, you must respond. Let me repeat that in case it wasn’t clear enough. You must respond when named in a lawsuit. The old adage is that “80 percent of success is showing up.” You have to show up in court (i.e., respond) if you want to succeed.
The document that initiates a lawsuit is called a “complaint” or a “petition.” That document sets forth what the plaintiff is seeking from the defendant or defendants. It sets the stage for what is to come in the lawsuit.
The “defendant,” or “respondent,” usually has 30 days to respond from the date the complaint is received. A defendant can respond with an “answer” or a “response” or even file a motion in an effort to dismiss the case for a variety of reasons.
If a defendant does not answer the complaint or petition in the required timeframe, the plaintiff can ask the court to cut off the defendant’s right to respond. This is called a “default.”
In certain cases, after the default is entered, the court will require the plaintiff to prove the damages that he or she has suffered. However, the defendant is precluded from participating in the proceedings. From your question, it sounds like default has been entered but that the plaintiff’s alleged damages still have to be proven.
Sitting on your hands or being ignorant of the law is no excuse for not participating in the process. The law provides that a court can relieve a party from an order or judgment as a result of the party’s “mistake, inadvertence, surprise or excusable neglect.” But relief from a court judgment is the exception, not the rule.
It is likely that your elderly mother’s conversation with the opposing counsel, who told her that they weren’t “after her,” would constitute excusable neglect sufficient to set aside the default. Based upon your question, excusable neglect appears to be your best argument. Hopefully it works because your mother needs to get back into court so that she can present her defense — that she is not responsible for the plaintiff’s injury.
Speaking more generally, consumer debt collectors rely on and use defendants’ failure to show up to obtain default judgments and further collection efforts. After the phone calls and letters to a debtor, the debt collector will sue for non-payment of a debt. They hope that the resigned defendant simply never shows up to court, essentially handing them a default judgment.
Then, they use the state court judgment to get income withheld from a paycheck or place a lien on the debtor’s house. However, when a debtor actually responds, certain debt collectors have been known to simply drop the lawsuit altogether. It’s easier to simply move to the next case where the defendant may not show up.
So the simple takeaway is to respond to any legal action filed against you. It doesn’t guarantee you’ll win, but at least it will ensure that you have your day in court.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.
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