A default entered against me in a civil case in Massachusetts, how do I get it removed?
20 September 2020
The summons will clearly state that responsive documents from the defendant, whatever that may be, need to be served within 20 days from the date the defendant was served with the complaint, etc., but this requirement doesn’t seem to be realized by many defendants. This leads to defaults in situations where the defendant wants to defend the case, and was, at least mentally, in the process of taking action. In this situation, the default must be removed, or set aside, to get back in the game, so to speak.
Overall, the most important item here for success is not a legal one. It is the mindset of the defendant. Understand that as the defendant in this situation, you must take affirmative action to avoid losing the case, specifically to avoid judgment entering against you. And saying “losing the case” is misleading because in a sense you already have lost, because, again, you need to take affirmative action. You rights have changed, you no longer have the right to defend the case, other than having the right to seek remove of the default. That needs to be addressed before you can do anything else in the case.
Now that you realize action is needed, the second item is similar to the first and one of the most common mistakes. You cannot let too much time pass before addressing the matter. Do not delay at all. One reason is you will give the plaintiff the time to take it to the next step, specifically judgment, which takes it to another level and standard. The second reason is that one of the factors considered in allowing a defendant to set aside a default is how quickly the defendant acts. Sometimes the simple passage of time is enough to be denied.
Now that you accept that action needs to be taken and taken in a timely fashion, when it comes to getting a default removed, there is a way to do it, and a way not to do it. Initially, understand the standard you must meet, it is: 1) good cause for failing to plead or defend in a timely manner; and 2) a meritorious defense. Johnny’s Oil Company, Inc. v. Walid Eldayha, 82 Mass. App. Ct. 705, 708 (2012). “Other factors considered are whether the default was wilful, whether setting it aside would prejudice the adversary, and the defaulted party’s promptness in seeking relief.” Institution for Savings in Newburyport and Its Vicinity v. Langis, 92 Mass. App. Ct. 815, 822 (2018).
Once you understand the standard that must be met, there is a way to meet that standard. It includes presenting the facts of why you should be excused for your delay by affidavit. Johnny’s Oil Company, Inc. v. Walid Eldayha, 82 Mass. App. Ct. 705, 708 (2012) (Ruling failure of defaulting defendant to provide “affidavit setting forth the facts and circumstances [explaining reason for failure to file answer]” was “a fatal omission.”); New England Allbank for Sav. v. Rouleau, 28 Mass. App. Ct. 426, 429 (1986) (“A defendant, trying to set aside a default or default judgment (whether under Rule 55[c] or Rule 60 [b]) must, in any event, accompany his motion with an affidavit setting forth the facts and circumstances (including the nature of his defense on the merits) upon which he rests his motion.”). Not doing so is one of the most common mistakes and is make by layman and lawyer alike.
With understanding all the above, do not short shrift the defense you must present. As shown above, failure to present a viable defense itself can be fatal to the efforts to remove a default. Usually, due to time pressure and the need to focus on the other requirements, the presentation of a meritorious defense in not invested in like it should be. As shown above, if facts are necessary to show the viable defense, they should be in the affidavit as well. Avoid conclusory statements, but rather give provide supportive details.
The good news is that it is not a high bar and “doubts [should be resolved] in favor of [the] party seeking relief from the entry of a default.” Ceruolo v. Garcia, 92 Mass. 185, 189 (2017). If you are either seeking to remove a default or to keep one in place, feel free to contact this office to discuss.