Also known as: defaults · defaulted · defaulting · nonappearance · nonpayment
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
A notation entered by the clerk when a party against whom affirmative relief is sought has failed to plead or otherwise defend. The entry establishes the fact of nonappearance for purposes of further proceedings including default judgment.
Failure by a party to perform an obligation secured by a mortgage, deed of trust, lease, or similar instrument. The failure authorizes the secured party or landlord to exercise remedies such as foreclosure, acceleration, or recovery of damages.
Each sense below has its own examples, sources, and questions.
A notation entered by the clerk when a party against whom affirmative relief is sought has failed to plead or otherwise defend. The entry establishes the fact of nonappearance for purposes of further proceedings including default judgment.
Darrell Duncan was served with a summons and complaint but never filed an answer or any motion. After the twenty-one-day period expired, the plaintiff presented an affidavit showing the failure to respond. The clerk entered default against Duncan on the docket.
Daphne Doyle sued for a sum certain and obtained entry of default. The court entered judgment but limited recovery to the exact amount demanded in the complaint. Any request for additional relief beyond the pleadings was denied under the rule governing default judgments.
The plaintiff must show by affidavit or otherwise that the defendant has failed to plead or otherwise defend. Once that showing is made the clerk enters the default as a ministerial act.
No. Rule 54(c) prohibits a default judgment from differing in kind from or exceeding in amount the relief demanded in the pleadings.
No. Service on the registered agent starts the twenty-one-day period under Rule 12(a)(1)(B). Internal forwarding delays do not extend the deadline or prevent entry of default.
Failure by a party to perform an obligation secured by a mortgage, deed of trust, lease, or similar instrument. The failure authorizes the secured party or landlord to exercise remedies such as foreclosure, acceleration, or recovery of damages.
Dylan Duffy borrowed funds from a bank and pledged his home as security under a mortgage. When Duffy stopped making monthly payments, the bank treated the missed installments as default. The bank then initiated foreclosure proceedings to sell the property and recover the outstanding debt.
Derek Douglas leased retail space from a landlord who failed to repair the roof as required. Douglas had made reasonable pre-lease expenditures the landlord could have foreseen. Douglas recovered those losses as damages caused by the landlord's default.
Dwight Dorsey formed a corporation that became insolvent and failed to observe corporate formalities while siphoning funds to himself. When the corporation defaulted on its debts, creditors sought to pierce the veil. The court applied the totality of circumstances test and held Dorsey personally liable.
David Dawson signed a note secured by real property containing an acceleration clause. After Dawson missed several payments, the lender declared the entire unpaid balance immediately due. The acceleration allowed the lender to proceed directly to foreclosure for the full amount.
Acceleration is permitted only when the mortgage or note contains an acceleration clause and the lender exercises the right in good faith. Some jurisdictions also require notice and an opportunity to cure before acceleration.
Damages may include loss from reasonable pre-default expenditures the landlord could foresee, reasonable costs of substitute premises, and in business leases proven lost profits the landlord could have anticipated.
…may be sold under the order of the Court to pay the demand of the plaintiff, if the defendant does not appear, or otherwise defaults. Any defendant whose property shall have been so seized and who shall have entered a general appearance in the cause may, upon notice to the plaintiff, petition the Court for an order…
…has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default
…This standard, the Court of Appeals reasoned, is compatible with the "cause and prejudice" standard for overcoming procedural defaults in federal collateral proceedings and discourages insubstantial claims by requiring more than a showing, which could virtually always be made, of some conceivable adverse effect on the…
…re Ayers , supra , at 505; accord, Seminole Tribe , 517 U. S., at 58, regardless of the forum. Not only must a State defend or default but also it must face the prospect of being thrust, by federal fiat and against its will, into the disfavored status of a debtor, subject to the power of private citizens to levy on its…
…out of Louisiana's attempt to renege on its bond obligations. Hans sued the State in federal court, asserting that the State's default
A single filing constitutes a timely answer to the crossclaim when its substantive content directly addresses every allegation in the crossclaim even if the caption refers only to the original complaint.