In this article...

This article will discuss: 

  • What are some reasons a party may be in default? 
  • How does a party ask the Court to find the other party in default? 
  • Are there any categories of people with special protection from default judgments? 
  • What happens if someone obtains a default judgment? 
  • How would a party set aside a default judgment? 
  • What are the elements of excusable neglect? 

Default judgments are commonplace in Iowa. Default judgements exist so that, if one party does not participate in the case after being served with notice, the case will not extend an unreasonably long time. In Iowa, the civil original notice must state that judgment by default may be rendered for the relief demanded in the petition if the Respondent fails to file a motion or answer within (normally) 20 days.  

This article will discuss: 

  • What are some reasons a party may be in default? 
  • How does a party ask the Court to find the other party in default? 
  • Are there any categories of people with special protection from default judgments? 
  • What happens if someone obtains a default judgment? 
  • How would a party set aside a default judgment? 
  • What are the elements of excusable neglect? 

What are some reasons a party may be in default? 

There are several situations in which an individual may find himself or herself in default. These include: 

  • Failing to file an answer or motion after being served with a petition 
  • Withdrawing a pleading without permission to replead 
  • Failing to be present for trial 
  • Failing to comply with any order of court 
  • Any other act designated a default under statute.  

How does a party ask the Court to find the other party in default? 

A party may ask that another be found in default if a party has done any of the above. The non-defaulting party may file an application for a default judgment with the clerk of court. However, prior to doing this, the non-defaulting party must give the other one more chance to participate. The non-defaulting party will mail a letter, called a “Notice of Intent to File for Written Application of Default” to the defaulting party’s last known address (or their attorney if represented). After ten days have passed, the non-defaulting party will attach this letter, along with the certification that ten days have passed since the notice was mailed, to the written application for default filed with the Court.  

Are there any categories of people with special protection from default judgments? 

Note that if a party suffers a legal disability (a minor, person in state hospital for the mentally ill, person judged as incompetent/mentally incapable of conducting a defense) or is a prisoner incarcerated in a penitentiary, then there are special protections against default judgments. In these cases, the other party cannot obtain a judgment against the protected person unless a guardian ad litem or attorney (or in the cases of minors and certain adults, a conservator or guardian) appears at trial to present a defense. The petitioner or plaintiff in these cases would likely end up paying the cost of the guardian ad litem, so this should be considered carefully if the defendant meets any of the above designations.  

What happens if someone obtains a default judgment? 

If someone obtains a default judgment, the non-defaulting party will be awarded what it is entitled to, provided notice and opportunity to respond has been given to the defaulting party. If the desired amount is a definite amount of money, the non-defaulting party will file an affidavit stating it is entitled to that amount, and the clerk will approve it. The court may allow the non-defaulting party to present evidence or accounting to a judge or jury required to warrant the judgment. 

If the defaulting party was previously personally served with notice of the action, the Clerk of court will give the defaulting party notice that a default judgment was entered, by ordinary mail.  

How would a party, against whom a default judgment is entered, set aside that judgment? 

If a defaulting party receives notice a judgment was entered against them, they will have the opportunity to try and set aside the default. This means the case would be re-opened, and the defaulting party would participate in the case like they normally would. The defaulting party will need to file a motion and show there was good cause for being in default. The court may set aside a default or judgment for mistake, inadvertence, surprise, excusable neglect, or unavoidable casualty. No more than 60 days can pass after the entry of the judgment prior to filing a motion to set aside 

The defaulting party has the burden to plead and prove good cause. Good cause is a “sound, effective and truthful reason,” something more than an excuse, plea, apology, extenuation, or some justification. It must rise to the grounds enumerated in the rule, mistake, inadvertence, surprise, excusable neglect, or unavoidable casualty. Good cause also requires at least a claimed defense asserted in good faith. The court prefers to allow a determination of controversies on their merits, but will not set aside a default notice where the defaulting party fails to show any effort to appear in response to a due and timely notice.  

Mistake, inadvertence, and excusable neglect imply conduct by the defaulting party that relieves the party from default. Surprise and unavoidable casualty imply events outside the control of the defaulting party that relieves the party from default. Of the factors, excusable neglect has developed its own factors through caselaw.   

 

What are the factors for setting aside default on the grounds of excusable neglect? 

The factors to be considered when setting aside a default judgment on the grounds of excusable neglect are 

  • Whether the defaulting party actually intended to defend 
  • Whether the defaulting party asserted a claim or defense in good faith 
  • Whether the defaulting party willfully ignored or defied the rules of procedure or was the default simply the result of mistake; and 
  • Whether relief is warranted should not depend on who made the mistake. 

Posted 
February 2, 2021
 in 
Text Link
 category

What to Expect From a Consultation

The purpose of a free consultation is to determine whether our firm is a good fit for your legal needs. Although we often discuss expected results and costs, our attorneys do not give legal advice unless and until you choose to retain us. Although most consultations are complimentary, some may carry a charge depending on the type of matter and meeting location.

Similar Articles

Heading

Learn about Law
Indiana
Illinois
Iowa