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Avoiding and Challenging a Default Judgment in Virginia

By Kristen L. Loesch, Esq.

If you learn that a default judgment has been entered against you or your business as a defendant in a lawsuit, it is important to seek legal advice immediately. How quickly you act can have a tremendous impact on your ability to overcome a default judgment.

How to Avoid a Default Judgment

Although there are procedures to seek to have a default judgment set aside, there is no guarantee that a court will set it aside. The way to prevent a default judgment from being entered against you is to file a timely response to a lawsuit. When you receive a Warrant in Debt or a Summons and Complaint that has been filed in General District Court or Circuit Court in Virginia, whether by personal service or service on the registered agent of your business, you should carefully review the document to determine the amount of time you have to respond or the date you are required to appear before the court. If you are unsure when and how to respond to the lawsuit, you should consult an attorney right away, as the time to respond is short. If you or your business is served with a lawsuit and you don’t file a written response within the required time, or you fail to appear at the court hearing, a default judgment may be entered against you or your business as the defendant.

What to Do If a Default Judgment is Entered Against You or Your Business

If a default judgment has been entered, there will be a limited amount of time in which a judgment may be set aside, so you need to act quickly. In Virginia, the court that entered the judgment loses jurisdiction of the case after 21 days, and, absent a proper and timely filed appeal, the judgment becomes final and conclusive. There are a few circumstances under which a court may set aside a default judgment, provided a timely motion is filed:

  • When proper service of process has not been made. Occasionally, a party may not have been properly served. The plaintiff is required to follow a particular process to ensure that proper notice is given to the defendant to allow them sufficient time and information to respond to the lawsuit. If you did not receive the proper notice of the lawsuit, you may be able to set the judgment aside, if you act promptly.
  • When the court does not have proper jurisdiction over you or your business. If you do not live in Virginia and have no significant contacts with Virginia, or if your business is not located in Virginia and does not do business in Virginia, the Virginia courts may not have personal jurisdiction over you or your business. There are specific procedures for serving a corporate entity and an out of state defendant that must be followed. If service has not been properly made, a Virginia court cannot compel you to answer and defend a lawsuit. However, you need to follow certain procedures to contest jurisdiction without waiving your rights, so you should consult an attorney to learn about those procedures.
  • When the Judgment is Void. If the court entered a judgment against you or your business improperly, you may have a basis for filing a motion asking the court to set aside the judgment as void. Judgments may be void for several reasons, for instance, if the plaintiff committed fraud on the court, or did not allege or prove facts sufficient to satisfy the requirements to sue a non-resident, or did not serve you or your business properly.
  • When you satisfied the claim against you before the default judgment was entered. If the dispute is about the payment of money, and if you can prove you had paid the plaintiff before the default judgment was entered against you, the court may set aside the judgment.
  • When you were serving in the U.S. military at the time of service of the lawsuit. Under the Servicemembers Civil Relief Act, under certain circumstances a court may set aside a default judgment if you were served or the default judgment was entered when you were in the military service of the United States and you were unable to appear in court for that reason.
  • When the Parties Agree to a Settlement. A default judgment can be enforced by the plaintiff through various means, such as garnishment of the defendant’s bank account and wages. To avoid a garnishment or other enforcement action, you may want to negotiate the terms of a settlement with the plaintiff that includes an agreement that the default judgment will be vacated (dismissed) by the court.

Caulkins & Bruce, PC has represented both individuals and corporations in actions to have default judgments set aside. If you think a default judgment has been wrongly entered against you or your business, please contact Caulkins & Bruce, PC to schedule a case evaluation and consultation.

The information presented here should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

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