Litigation/Jul 23, 2012

Defaults in Litigation

When a defendant in a lawsuit fails to timely file an answer, the plaintiff is entitled to the entry of a default.  After a default enters, the plaintiff can move for the entry of a default judgment.  I can’t tell you how many times defendants have approached me over the years after the default judgment has entered.  When asked why they waited so long, I’ve heard any number of different excuses.  In Michigan, a court can set aside a default if “good cause” is demonstrated and an affidavit is filed that shows that the defendant has a meritorious defense.

Good cause may be shown if there was a procedural error or irregularity in the filing of the suit, in the serving of process or filing of the default papers.  Defendant’s attorneys scour the court record looking for procedural error; however, even if a procedural error is discovered, the error must result in actual prejudice before good cause will be found.  Alycekay Co v Hasko Construction Co., 180 Mich App 502 (1989).  Plaintiff’s lawyers who oppose motions to set aside a default should argue that the defendant was not prejudiced.

One interesting note is that if the plaintiff’s complaint does not state a valid cause of action, a default should be set aside.  Lindsley v Burke, 189 Mich App 700 (1991).  A good defense counsel should always make sure plaintiff’s complaint was properly pled.

All is not lost if you have been defaulted in a case, but setting aside a default is an uphill battle, and you need able counsel to help you climb the hill.

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