When a Defendant doesn’t file an Answer to a Complaint in the required 30 days (and never files even a late Answer), the Plaintiff can ask for a Judgment “by default,” i.e. as a result only of the Defendant’s failure to respond.
This happens a lot in Chancery Court collections cases. Conventional wisdom says that, if the Defendant doesn’t have the money to pay the debt, then he probably doesn’t have the money to pay a lawyer to fight the lawsuit.
About once or twice a year, after complete silence from a defendant (and after I get a judgment), I’ll receive a “Motion to Set Aside a Default Judgment,” asking the Court to undo the Judgment and allow him to litigate the matter.
I’ve seen all kinds of excuses. One Debtor had a heart condition and didn’t want to deal with the stress. Another says his lawyer forgot to tell him about the Motion. Or the postman didn’t deliver it. Or all of the above.
A rule of thumb is that Tennessee courts dislike defaults, and the courts would rather matters be decided on the merits. That’s what all the Motions to Set Aside always say.
Last week, the Tennessee Court of Appeals issued a new opinion in Monroe v. Monroe (a divorce case) that contains a good, precise statement of the standards for setting a default judgment aside.
The Court confirmed that default judgments aren’t favored and a Court will err on the side of the moving party, but the moving party must show that relief is appropriate under Tenn. R. Civ. P. 60.02 and that it has a “meritorious defense” to the lawsuit.
Rule 60.02 requires a showing of mistake, inadvertence, surprise, or excusable neglect. That’s not enough, however: the moving party must also show some sort of defense to the action.
The second prong is designed to prevent a party setting aside a judgment, only to suffer an inevitable summary judgment a month later because they didn’t have any defenses.
I’d add that a Motion under Rule 60.02 must be made within a “reasonable time” and, generally, no later than a year after the Judgment.
As a creditor’s lawyer, I hate these. Leave my judgments alone.
4 thoughts on “New Tennessee Court of Appeals Case: To Set Aside a Default Judgment, Movant Must Comply with Rule 60.02 and Show a Meritorious Defense”
Thanks, but Monroe is not a published case and can not be cited.
Two things: 1) Unpublished cases can be cited, but the published/unpublished issue is factor in the weight they are given; 2) More important, Monroe contains citation to all the relevant published caselaw–it’s one stop shopping for what you need on this issue.
I was served for a credit card default from a 3rd party so I decided to check my credit report and found that there was 2 judgments against me, one from 2011 and one from 2012. I went to the clerk of court and got copies of the summons. I was never served. I have a gate at the enterence of my property with a no trespassing sign up. This past time the sheriff came to my home to serve me, he stayed on the other side of that gate. I spoke with the woman at the clerks office and she said I was served, I told her I was not and of course it is not signed. I don’t even think one of them belongs to me. how can I fix this? PS. I fought and won this last one against me.
Of course you want your judgments left alone. We were never served any papers or received any mail regarding the law suit and never received any notification for a debt that was opened fraudulently under my husband’s name 20 years prior. We are filing to vacate the judgement and then suing the creditor’s lawyer for failure to follow proper procedure so we can get back the money he stole. Many creditor lawyers are the equivalent to “ambulance chasers”. Hopefully you yourself at least follow the law.