Should I attend a dismissal hearing after a motion for default judgment has been filed?
Get Legal Help Today
Compare Quotes From Top Companies and Save
Secured with SHA-256 Encryption
Should I attend a dismissal hearing after a motion for default judgment has been filed?
I was issued a summons, I signed and returned it 8 months ago. I never appeared to answer in court, but I see that about 2 months ago a motion to retain was filed for 30 days. A month later a motion for default judgment was filed. Lastly a dismissal hearing is scheduled for 2 weeks from now. I’m trying to see if my attendance to the proceedings could “stop” anything. After reading the motion to retain it seems there has been a delay in filing the motion for default judgment by the plaintiff. Could my presence in court do anything? What should I bring for the judge?
Asked on August 6, 2011 Texas
Answers:
S.L,. Member, California Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
When you were served with the summons, attached to the summons was the complaint (lawsuit). The default was filed because you didn't file an answer to the complaint with the court and serve it on the opposing party. Signing the summons and returning it would not be sufficient to constitute filing an answer to the complaint. An answer denies the allegations in the complaint.
You can file a motion to set aside the default. If you succeed in having the default set aside, the case will be back on track and litigation will continue. You will need to file your motion to set aside the default before the hearing. You should file it as soon as possible so that you don't miss the filing deadline. The filing deadline for filing documents prior to a hearing varies from state to state. At the law library, the law librarian can help you find a sample motion to set aside a default which will give you the general format. It would be advisable to attend the hearing and present arguments based on what is in your motion to set aside the default as to why your motion should be granted and the case should not be dismissed. Your arguments shouild include the reason why you didn't file a timely answer to the complaint and the adverse impact that a default and dismissal will have on your case. If you don't file a motion to set aside the default and don't appear in court, the judge will most likely dismiss the case.
IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.