Local Rule RULE 7055-1: DEFAULT JUDGMENT

RULE 7055-1 DEFAULT JUDGMENT

(a) Default Judgment Application Deadline. A plaintiff entitled to a default judgment due to defendant's failure to answer, appear, or otherwise defend the action, must file the appropriate application for default judgment within forty-five days after the first day plaintiff is entitled to entry of default. Failure to seek a default judgment within forty-five (45) days after default occurs may result in the Court dismissing the adversary proceeding pursuant to Fed. R. Bankr. P. 7041.

(b) Clerk's Entry of Default. Prior to filing an application for default judgment, the party seeking default judgment shall obtain the Clerk's Entry of Default pursuant to Fed. R. Bankr. P. 7055. For the Clerk to enter a default, the applicant must show by sworn statement the following:

(1) The summons and complaint have been timely and properly served on the defaulting party as required by Fed. R. Bankr. P. 7004;

(2) An accurate and complete certificate of service has been filed. A copy of the certificate of service must be attached as an exhibit to the sworn statement in support of the application for the Clerk's Entry of Default;

(3) The defaulting party is not an infant, an incompetent person, nor in the military service (see comment); and

(4) The defaulting party has failed to plead or otherwise defend the action.

(c) Obtaining a Default Judgment from the Clerk. The Clerk may enter a default judgment if the defaulting party is not the debtor, the underlying action is a core proceeding and the default judgment is for a sum certain and does not include a request for attorney's fees or other substantive relief. A party seeking entry of a default judgment by the Clerk must file the following:

(1) A sworn statement of the amount due and the basis for the same;

(2) A copy of the Clerk's Entry of Default; and

(3) A proposed judgment for signature by the Clerk.

(d) Obtaining a Default Judgment from the Court.

(1) Core Proceeding. Where the adversary proceeding is a core proceeding, a party seeking entry of default judgment by the Court shall file:

(A) A motion for default judgment;

(B) A sworn statement under Fed. R. Civ. P. 55(b)(2), made applicable by Fed. R. Bankr. P. 7055;

(C) A copy of the Clerk's Entry of Default;

(D) A sworn statement of amount due including a statement of the damages being requested and the basis for them;

(E) A proposed order granting the motion for judgment by default;

(F) A proposed judgment, if applicable, for signature by the Court; and

(G) If the party against whom a default judgment is sought has appeared in the proceeding or is the debtor, an affidavit of service indicating notice of the motion was provided to the defaulting party as required by Fed. R. Bankr. P. 9014.

(2) Non-Core Proceeding. Where the adversary proceeding is a non-core proceeding, plaintiff may seek a Recommendation from the Court to the District Court that a default judgment be entered by filing the following:

(A) An sworn statement under Fed. R. Civ. P. 55(b)(2), made applicable by Fed. R. Bankr. P. 7055;

(B) A copy of the Clerk's Entry of Default;

(C) A sworn statement of amount due including a statement of the damages being requested and the basis for them;

(D) A proposed order transmitting record to District Court, combined with the finding that the complaint has been properly served and the time within which to answer or other respond has passed and no pleading has been filed and that it is recommended that the Default Judgment enter default judgment;

(E) A proposed order ranting the motion for judgment by default for signature by the District Court; and

(F) A proposed judgment, if applicable, for signature by the District Court.

Comment Securing a default judgment is a two-step process. A party seeking a default judgment must follow (1) the procedure outlined in paragraph (b) of this Rule, and then (2) either the procedure outlined in paragraphs (c) or (d) of this Rule.

In her discretion or where entry of default judgment by the Clerk is not permissible, the Clerk may present any application for default judgment to the Court for its consideration.

Through use of the following website, the U.S. Department of Defense will advise either that it does possess information regarding whether an individual is on active duty, or it does not possess information indicating that the individual is or was on active duty: https://scra.dmdc.osd.mil