Were you recently sued in North Carolina and failed to respond? Is the plaintiff pursuing a default judgment against you? If so, you need to move quickly to find a civil litigation attorney in Charlotte, NC to help you preserve your rights.
Under Rule 55 of the North Carolina Rules of Civil Procedure, a court may enter a default judgment against a litigant who has “failed to plead or is otherwise subject to default judgment as provided by [the Rules of Civil Procedure] or by statute.” Rule 55(a). Before the trial judge or clerk of superior court may enter a default judgment, the court must go through a two-step process: (1) entry of default against the defendant, and (2) entry of the default judgment (more on that here).
One common issue that arises when dealing with default judgments is: who has the authority to enter the judgment? For the first step of the process, an “entry of default,” North Carolina law is clear that either the trial judge, the clerk of superior court, or the assistant clerk of superior court may enter default. Once default has been entered, though, the clerks may only enter the “default judgment” in a narrow set of circumstances.
- When the Clerk May Enter a Default Judgment – Default judgment may be entered by a clerk of superior court only when (1) the defendant has not appeared in the action, (2) “the plaintiff’s claim against a defendant is for a sum certain or for a sum which can by computation be made”, and (3) “the defendant is not an infant or an incompetent person.” Rule 55(b)(1).
- When the Trial Judge May Enter a Default Judgment Without a Hearing – Generally, the court will hold a hearing prior to entering a default judgment. Although, the court may determine the issue without a hearing if (1) the Motion for Default Judgment “specifically provides that the court will decide the motion for judgment by default without a hearing if the party against whom judgment is sought fails to serve a written response…” and (2) the defaulting party does not serve a response.
- When the Trial Judge May Enter a Default Judgment with a Hearing – In all other cases, the trial court judge must enter the default judgment after a hearing on the issue. Where a litigant has made an appearance in the case, the defaulting party “shall be served with written notice of the application for judgment at least three days prior to the hearing on such application.” When the damages at issue are not for a “sum certain,” the defendant is entitled to put on evidence and cross the plaintiff’s witnesses regarding damages.
Occasionally, litigants will not pay close attention to these rules, and the clerks will enter default judgments without having the authority to do so. These cases are prime for having the default judgment set aside. At Conrad Trosch & Kemmy, PA, our experienced team of lawyers in Charlotte, NC is well-versed in the process and can find ways to help you pursue or fight against a default judgment, no matter what stage of the process you are in. Call us today to learn how we can help you.