Failing to Respond to a Lawsuit Filed Against You May Be Costly

Failing to Respond to a Lawsuit Filed Against You May Be Costly

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When a civil lawsuit is filed, the Missouri Rules of Civil Procedure require that the defendant file an answer within 30 days after service or if the lawsuit is filed in associate circuit court, that the defendant appear on the return date indicated in the court summons. Failure to respond to the lawsuit will result in a default judgment being entered against the defendant. Sometimes a defendant against whom a default judgment has been entered will request that the court set aside the default judgment for excusable neglect, such as he was late for court or she failed to properly note the deadline for responding.

To the extent there was any doubt that this does not constitute good grounds for setting aside the default judgment, that doubt was eliminated by the Missouri Court of Appeals, Western District, in Bryant v Wahl, WD7888 (Aug. 2, 2016). In Bryant, even though Mr. Wahl had been adjudged mentally incompetent in a prior criminal proceeding, the court refused to set aside a default judgment entered against him because he failed to follow the proper procedures for filing such a motion. This resulted in the affirmation of a $5 million default judgment entered against him.

Missouri Rule of Civil Procedure 74.05(d) states that in order to have a default judgment set aside, a party must state facts “constituting a meritorious defense” and show “good cause.” The court in Bryant reminds us that there is an initial pleading requirement as well. Courts require that motions to aside default judgments be supported by affidavits or sworn testimony. In other words, these motions are not self-proving. Also, defaulting parties are not entitled to an evidentiary hearing to overcome any evidentiary deficiencies in their written motion. Defaulting parties are not entitled to evidentiary hearings as a matter of right.

With regard to the requirement that the defaulting party show he or she has a meritorious defense, it must be an “arguable theory.” Nevertheless, the facts supporting the theory must have a basis in reality and cannot be mere speculation. The court in Bryant emphasized that there must be some evidence to support the defense. Allegations that “discovery may reveal affirmative defenses” will not suffice.

The lesson of Bryant v. Wahl is that if you are served with a lawsuit, you should not ignore it even if you think you have a good defense or if you think the court knows you have a good defense. Rather, you should give it your full attention and proceed with filing a response or appearing on the required date for associate level cases. The burden of proof to have a default judgment against you set aside later is high and the requirements are strict, and if the motion is denied, the default judgment could be very costly to you. It could possibly be much more costly than hiring a law firm to help you defend it in the first place.