Utah Court Rules – Published for Comment
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Posted: July 10, 2015
URCP 055. Default. Amend. Requires that the plaintiff provide a verfiied complaint or affidavit setting forth necessary facts to establish the amount of the claim, after deducting credits, and verifies that the amount is warranted by information in the plaintiff’s possession. Effective July 8, 2015 under rule 11-105 of the Utah Code of Judicial Administration. Subject to change after the comment period.
This edit strikes me as cumulative of Rule 11. Under Rule 11, by signing a Complaint, a party has certified that “to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances … the allegations and other factual contentions have evidentiary support.”
I understand the desire the protect a party in default from frivolous claims, however, there are already protections and remedies available under Rule 11.
Given the certifications made by simply signing a Complaint, and given that a party in default shows no desire to contest the allegations in the Complaint, I believe the only result of this edit would be to create an unnecessary burden on Plaintiffs.
If it ain’t broke don’t fix it. The rule has been working smoothly for my 34 years of practice. It is more red tape & expense added to the default process like the information statement and the military service declaration and order.
Why add this requirement when Courts almost routinely vacate default judgments if the Defendant later claims he has a defense? This is an additional burden with no corresponding benefit.
This change requires unnecessary paperwork without adding any real protection. When a complaint is filed, if it specifies damages, like any other fact, the party already has the obligation to verify that fact. Service provides the opportunity for the opposing party to contest that fact. These protections are fully adequate to protect the opposing party’s interests without adding the superfluous requirement of a notarized signature on a verified complaint or the burdensome requirement of an affidavit. Because the change to this rule adds an unnecessary protection while increasing the burden on the complaining party and decreasing judicial efficiency, it should be eschewed.
Does the affidavit need to be filed by the plaintiff, or is plaintiff’s attorney sufficient?
There was no urgency necessitating immediate implementation of the rule change prior to waiting the 45 day comment period.
Utah’s current rules are fully adequate and functional for handling default judgments. The change to URCP 55 is unnecessary. By defaulting, a defendant admits all factual allegations in the complaint. URCP 8(d); Murdock v. Blake, 26 Utah 2d 22, 484 P.2d 164, 169 (1971); Phillips Petroleum Co. v. Hart, 480 P.2d 131, 132 (1971); Stevens v. Collard, 837 P.2d 593 (1992). Such includes the sum certain amount owed.
Additionally, the new language of subsection (b)(1)(D) requires more than simply an affidavit specifying the amount owed. Rather it requires an affidavit that “sets forth the facts necessary to establish the amount of the claim, after deducting all credits to which the defendant is entitled.” This provision converts the role of the clerk into performing a judicial function determining whether the facts set forth in the affidavit are sufficient. If the intent is not to impute such a judicial role to the clerk, then the language must be changed to remove any potential for subjective weighing of whether the affidavit “sets forth the facts necessary to establish …”.
All facts of the complaint are already stipulated to by the default. Utah’s neighboring states that do require an affidavit for default simply require an affidavit stating the “amount due” and nothing more. See e.g. ARCP 55(b)(1) (“upon affidavit of the amount due”) and NVCP 55(b)(1) (“affidavit of the amount due”). There is no possibility for subjective assessment or disparate practice among clerks or locales of whether the affidavit “sets forth the facts necessary to establish…”. If an affidavit is to be required it should simply require the stating of the sum certain amount due.
We therefore oppose the changes to rule 55. However if an affidavit is to be required, the rule should be clarified to require an affidavit setting forth the sum certain amount owed and nothing more.
There was no urgency necessitating immediate implementation of the rule change prior to waiting the 45 day comment period.
Utah’s current rules are fully adequate and functional for handling default judgments. The change to URCP 55 is unnecessary. By defaulting, a defendant admits all factual allegations in the complaint. URCP 8(d); Murdock v. Blake, 26 Utah 2d 22, 484 P.2d 164, 169 (1971); Phillips Petroleum Co. v. Hart, 480 P.2d 131, 132 (1971); Stevens v. Collard, 837 P.2d 593 (1992). Such includes the sum certain amount owed.
Additionally, the new language of subsection (b)(1)(D) requires more than simply an affidavit specifying the amount owed. Rather it requires an affidavit that “sets forth the facts necessary to establish the amount of the claim, after deducting all credits to which the defendant is entitled.” This provision converts the role of the clerk into performing a judicial function determining whether the facts set forth in the affidavit are sufficient. If the intent is not to impute such a judicial role to the clerk, then the language must be changed to remove any potential for subjective weighing of whether the affidavit “sets forth the facts necessary to establish …”.
All facts of the complaint are already stipulated to by the default. Utah’s neighboring states that do require an affidavit for default simply require an affidavit stating the “amount due” and nothing more. See e.g. ARCP 55(b)(1) (“upon affidavit of the amount due”) and NVCP 55(b)(1) (“affidavit of the amount due”). There is no possibility for subjective assessment or disparate practice among clerks or locales of whether the affidavit “sets forth the facts necessary to establish…”. If an affidavit is to be required it should simply require the stating of the sum certain amount due.
We therefore oppose the changes to rule 55. However if an affidavit is to be required, the rule should be clarified to require an affidavit setting forth the sum certain amount owed and nothing more.
There was no urgency necessitating immediate implementation of the rule change prior to waiting the 45 day comment period.
Utah’s current rules are fully adequate and functional for handling default judgments. The change to URCP 55 is unnecessary. By defaulting, a defendant admits all factual allegations in the complaint. URCP 8(d); Murdock v. Blake, 26 Utah 2d 22, 484 P.2d 164, 169 (1971); Phillips Petroleum Co. v. Hart, 480 P.2d 131, 132 (1971); Stevens v. Collard, 837 P.2d 593 (1992). Such includes the sum certain amount owed.
Additionally, the new language of subsection (b)(1)(D) requires more than simply an affidavit specifying the amount owed. Rather it requires an affidavit that “sets forth the facts necessary to establish the amount of the claim, after deducting all credits to which the defendant is entitled.” This provision converts the role of the clerk into performing a judicial function determining whether the facts sets forth in the affidavit are sufficient. If the intent is not to impute such a judicial role to the clerk, then the language must be changed to remove any potential for subjective weighing of whether the affidavit “sets forth the facts necessary to establish …”.
All facts of the complaint are already stipulated to by the default. Utah’s neighboring states that do require an affidavit for default simply require an affidavit stating the “amount due” and nothing more. See e.g. ARCP 55(b)(1) (“upon affidavit of the amount due”) and NVCP 55(b)(1) (“affidavit of the amount due”). There is no possibility for subjective assessment or disparate practice among clerks or locales of whether the affidavit “sets forth the facts necessary to establish…”. If an affidavit is to be required it should simply require the stating of the sum certain amount due.
We therefore oppose the changes to rule 55. However if an affidavit is to be required, the rule should be clarified to require an affidavit setting forth the sum certain amount owed and nothing more.
From a forensic accounting standpoint, the following changes would advance the purposes of the proposed new verification requirement without increasing the burden upon the plaintiff:
“the plaintiff, through a verified complaint or an affidavit submitted in support of the default judgment, sets forth facts necessary to establish and itemize the gross claim; the deductions and credits to which the defendant is entitled; and, the net judgment amount, and verifies the amounts are warranted by information…”
A comment posed the question of whether a plaintiff’s attorney could or should swear-out the affidavit. After a four-decade career in forensic accounting and law, I present the personal opinion that it should be the client. While we are not required to contingently assume fraud and perjury on the part of our clients, we don’t vouch for our clients either, nor are our Rule 11 certifications the functional equivalent of a sworn affidavit from the client. And under regular rules of construction, as drafted the proposed rule appears to require the client to swear-out the affidavit.