What is a Default Judgment?
Default means that a party has not answered in the time allowed. In most cases, the party will be the defendant (in some casetypes called the respondent) who has not answered. But a party who does not answer is in default regardless of the party designation. (For example, the petitioner has to answer the respondent's petition to modify a divorce decree. The party designations remain the same even though the positions change.)
A default judgment is the order entered in favor of the party who filed the complaint (in some casetypes called the petition).
Service, Proof of Service, Answer
The plaintiff (in some casetypes called the petitioner) must have the defendant served with the complaint and a summons. The summons directs the defendant how and when to answer the complaint. Proof of Service must be filed with the court. Service is governed by URCP 4. For more information and forms, see our webpage on Serving Papers.
If the defendant is served in Utah, they have 21 days after service in which to answer. If the defendant is served outside Utah, they have 30 days after service in which to answer. There are other ways in which a defendant can appear in a case - and so avoid a default judgment - without first filing an answer, but usually the defendant files an answer.
If the defendant has not answered or otherwise appeared within the time allowed after the complaint and summons are served, then the court can enter a default judgment. See Section 78B-3-208.
Servicemembers Civil Relief Act
The Servicemembers Civil Relief Act creates special rights for service members. One of those rights is to protect against default judgments in civil cases that the service member may not be aware of.
Before the court can enter a default judgment in any civil case, the plaintiff must tell the court whether the defaulting party is in military service. If you knowingly make a false claim about a party's military service, you can be fined or imprisoned or both. Military service means active duty in the Army, Navy, Air Force, Marine Corps, or Coast Guard or called to active service in the reserves or National Guard.
The plaintiff must also describe the research they have done to conclude that the defendant is or is not in military service. If, after doing the research, the plaintiff is unable to determine whether the defendant is in military service, they can inform the court of that inability, again describing the research that was done.
If the judge is satisfied that the defendant is not in military service, the default judgment can proceed. If the defendant is in military service, the judge will vacate the default certificate and appoint a lawyer to represent the defendant. If the plaintiff is unable to determine whether the defendant is in military service, the judge can do one of three things:
- enter the default judgment and require plaintiff to post a bond to protect the defendant's rights;
- enter the default judgment and waive the bond; or
- deny the Motion for Default Judgment until more research is done.
If the defendant appears, there is no default, and the case can proceed, even if the defendant is in military service. For more information about the rights of service members in civil litigation, see our webpage on Lawsuits Involving Military Service Members.
Research to Determine Whether the Party is in Military Service
Some sources are more reliable than others in deciding whether a party is in military service, but there is no particular source that must be used. Even a plaintiff's personal knowledge about the defendant may be used. Whether the research is enough to convince the judge that the defendant is or is not in military service is entirely up to the judge.
A certificate from the Department of Defense Manpower Data Center (scra.dmdc.osd.mil) is the preferred evidence of the party's military service status. Follow the instructions for identifying the person you are inquiring about. The more identifying information you can provide, the more definitive the certificate can be.
If you don't have the person's Social Security number, you may request by mail a manual search, using the date of birth of the individual instead of the SSN. You must send a stamped, self-addressed envelope with your mail request. Requests can take several weeks to process.
Defense Manpower Data Center
Attn: Military Verification
1600 Wilson Blvd., Suite 400
Arlington, VA 22209-2593
Phone: 703-696-6762 or -5790
Each branch of service has a military locator service. There is usually a fee. Requests can take several weeks to process.
- Air Force: 1-210-652-5775
- Army: 1-866-771-6357
- Coast Guard: 1-800-842-8740
- Marines: 1-703-640-3942/43
- Navy: 1-901-874-3388
If you knowingly make a false claim about a party's military service, you can be fined or imprisoned or both.
Asking for a Default Judgment
The steps to ask for a default judgment are:
- serve the complaint on the defendant;
- file proof of service;
- wait the time that the defendant has to appear;
- research whether the defendant is in military service; and
- file the forms required for asking for a default judgment.
Defendant Who is a Service Member
If the defendant is in military service and does not answer, the defendant is in default, and the plaintiff should take the steps to ask for a default judgment. In signing the Military Service Order, the judge will appoint a lawyer and enter a 90-day stay. A stay means that nothing will happen in the case until the stay is lifted.
The lawyer's job is to try to contact the service member and determine their wishes. If the lawyer cannot contact the service member, the default judgment can be entered at the end of the stay. Default judgments against service members can be vacated later.
If, after being contacted by the lawyer, the service member wants to waive their rights and consent to the judgment, the lawyer will file the waiver and consent forms. The service member is no longer in default, so the default certificate will be vacated, and a judgment by consent will be entered.
If, after being contacted by the lawyer, the service member wants to contest the case, they may waive their rights and file an answer, in which case the default certificate will be vacated, and the case will proceed in the normal course. If the service member wants to claim their rights, they can ask for a stay to be entered for as long as military service materially affects the service member's ability to appear and defend the case.
Notice of Judgment
A default judgment must follow the complaint exactly. The judge cannot make any findings about things not alleged in the complaint. The court cannot grant any relief not asked for in the complaint. This website has a judgment form for some types of cases. If there is a form, follow the instructions for using it. Or write your own judgment for the judge to sign.
After the judge signs the judgment, plaintiff must serve a copy of it on the other parties in the case, even the party who is in default.
Everything stated here applies in small claims cases, except that in small claims cases the defendant does not file an answer. The defendant defaults by not appearing at the trial. In small claims cases, the plaintiff can research whether the defendant is in military service and prepare the forms before trial, to be ready in case the defendant does not appear. Or the plaintiff can do the research and prepare the forms afterwards and file them with the judicial services representative.
Setting Aside a Judgment
A judgment can be set aside if there are good enough reasons for doing so. If a default judgment is set aside, the case is reopened, the defendant must answer the complaint, and the case proceeds normally from there. A military service member has special rights to set aside a default judgment. See our Motion to Set Aside Judgment page for more information and forms.
Military Service Declaration Forms
Forms to Request a Default Judgment
- Checklist - PDF | Word
- Proof of Service
- Motion for Default Certificate - PDF | Word
- Default Certificate - PDF | Word
- Military Service Declaration - PDF | Word
- Military Service Order - PDF | Word
- Motion for Default Judgment - PDF | Word
- Findings of Fact, Conclusions of Law and Order (If you are preparing your own document, it may include findings and conclusions only on the matters you alleged in your Complaint/Petition. If the court website has a form, use the form and follow the instructions provided in that section of the website.)
- Request to Submit for Decision - PDF | Word
- Notice of Judgment - PDF | Word
- Answering a Complaint or Petition
- Department of Defense Manpower Data Center (scra.dmdc.osd.mil)
- Fee Waiver
- Filing Procedures
- Finding an Attorney
- Flowchart of the Service Member Attorney Volunteer Program - PDF
- Free Legal Clinics
- Going to Court
- Hill Air Force Base information about SCRA (hill.af.mil)
- Lawsuits Involving Military Service Members
- Rule of Civil Procedure 55. Default.
- Rules of Civil Procedure
- Service Member Attorney Volunteers
- Service Members Civil Relief Act Fact Sheet (statesidelegal.org) - PDF
- Servicemembers Civil Relief Act (SCRA) (veterans.house.gov) - PDF
- Servicemembers Civil Relief Act Judge's Guide (americanbar.org) - PDF
- Serving Papers
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