Blog
NOT ALL JUDGMENTS ARE THE SAME
More than 20 years ago, I had finished law school, passed the bar, and I was ready to start my career in law. I was traveling the State and interviewing with District Attorneys trying to become an Assistant DA. You see my wife and I just simply chose North Carolina as the State we wanted to live and raise a family. We otherwise had no family or friends in North Carolina. Hence, we had no network of such to find a job.
I finished my interview with the District Attorney in Rocky Mount and I was heading back to our apartment in Winston-Salem. I had one interview in Cary with a private law firm. I considered landing the job to be a long shot and the interview in Rocky Mount had already gone really well. I went in to my second interview that day relaxed and then practically went into shock when I got hired on the spot. This firm handled debt collection, collateral repossessions, and also provided foreclosure services. I remember being told that “We handle creditor rights cases” and trying my best to give the impression that I knew what that meant.
My boss was an amazing attorney and seemed to know how to handle every type of legal situation that arose. His best advice to me was “Jay, learn the rules of civil procedure. In and out. They are your best weapon.” I took his advice to heart and made sure that before every hearing, I was prepared for any argument an opposing attorney or any point a presiding judge might make on procedural grounds.
And then one day my boss said something that just did not ring true with me. He said it doesn’t matter what type of judgment you obtain, a judgment is a judgment. They are all the same.
I didn’t argue with him. He was my boss. After 2 years of being immersed in all types of creditor rights cases, I left the firm and opened my own office.
There are two main types of judgments, Default Judgments and Summary Judgments. There are other types such as Declaratory Judgments, Consent Judgments, and Confession of Judgments but I want to discuss the difference between Default Judgments and Summary Judgments.
Default Judgments are governed by Rule 55 and generally are entered because no Answer was filed by the Defendant. If no appearance is made in the case and if the complaint seeks only a money judgment, then the Clerk may enter judgment without a hearing. “Without a hearing” is a wonderful phrase for an attorney. We have to file suit where the debtor lives and if we can obtain a judgment without traveling to where the debtor lives, that’s a good thing. If an appearance is made in the case, e.g. extension of time to file an Answer is filed, then a hearing is required but only 3 days notice. So generally speaking, Default Judgments can be an easier way to obtain a judgment without having to leave the office.
Summary Judgments are governed by Rule 56 and generally are entered because an Answer was filed. However, at the Summary Judgment hearing, the Plaintiff shows that there is no issue as to the facts and the Plaintiff is entitled to judgment. In other words, it means that a trial is just not necessary because the facts are so clear. A Summary Judgment requires a hearing and at least ten days’ notice.
So far it seems like we should always hope for the Default Judgment, right? Sure but in my opinion, there is definitely at least one benefit a summary judgment has over a default type.
Rule 55 regarding default judgments states in part (d) Setting aside default. – For good cause shown the court may set aside an entry of default, and, if a judgment by default has been entered, the judge may set it aside in accordance with Rule 60(b).
Rule 60(b) states that “The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.” One whole year! This means that your default judgment is vulnerable to a motion to set aside for the next 12 months.
Rule 56 regarding Summary Judgments does not refer to Rule 60 and setting aside orders. Can Rule 60 apply to Summary Judgments? Yes but the bar a Defendant must meet is in my view and in my experience substantially higher.
The appeals period for all judgments is 30 days. When I obtain a summary judgment and 30 days have passed, I always feel like my Summary Judgment is a final judgment.
So for that first year after the judgment is signed and filed, it’s my opinion that a Summary Judgment is stronger than a Default Judgment.
In my next blog, I plan to discuss service of process by newspaper and which type of judgment should be sought in that circumstance. You see friends, not all judgments are truly the same.
Blog
