Rule 55 Default

(a) Motion for Default Judgment. When a party against whom a judgment for affirmative relief is sought by complaint, cross-claim, counterclaim, or other pleading has failed to plead or otherwise defend, the party seeking the affirmative relief may file a motion for a default judgment.

(b) Plaintiffs, Counterclaimants, Cross-Claimants. The provisions of this rule apply whether the party seeking the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of Rule 54(c).

(c) Judgment.

(1) Affidavits Required. The court shall not enter judgment by default against a party who has not appeared in the action until the moving party files an affidavit made on personal knowledge and setting forth facts as to liability and damages. The court shall not enter judgment by default against a minor or incompetent person unless represented in the action by a guardian, conservator, or other such representative who has appeared therein. The moving party must state in an affidavit whether the opposing party is at least 18 years of age, and whether the moving party has any knowledge as to the competency of the opposing party.

(2) When Claim Is for a Sum Certain and Opposing Party Has Not Appeared. If the moving party’s claim is for a sum certain or for a sum which can by computation be made certain, and the opposing party is not a minor or incompetent, without notice or hearing and upon affidavit of the amount due, the court may enter judgment for that amount and costs.

(3) When Defendant Has Not Appeared and Claim Not for a Sum Certain, or for Other Reasons. If the defendant has not appeared in the action and the claim is not for a sum certain, or if it is otherwise necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings as it deems necessary and proper before entering judgment.

(4) When the Opposing Party Has Appeared. If the party against whom judgment by default is sought has appeared in the action judgment may be entered by the judge after hearing, upon at least 7 days’ written notice served by the clerk.

(5) Affidavits Required by Servicemembers Civil Relief Act. Notwithstanding the foregoing, the court shall not enter judgment by default until the filing of an affidavit as required by section 201(b)(1) of the Servicemembers Civil Relief Act, 50 U.S.C. app. 521, stating whether or not the opposing party is in military service and showing necessary facts to support the affidavit or stating that the moving party is unable to determine whether or not the opposing party is in military service. If it appears that the opposing party is in military service, the court shall take appropriate action as provided in that Act.

(6) Failure to Appear at Trial. In those cases in which a party has appeared in the action but has failed to appear at a duly noticed trial on the merits, any other party seeking affirmative relief may either waive trial and move for a default judgment or proceed to trial. If the party seeking affirmative relief obtains judgment based on evidence submitted at trial, that judgment shall be deemed a default judgment solely for the purposes of Rule 55(d), Rule 62(b) and Vermont Rule of Appellate Procedure 4. If the party seeking affirmative relief chooses to file a motion for default judgment, a hearing shall be scheduled on the motion pursuant to paragraph (4).

(7) Credit Card Debt. In actions based on a credit card debt, a plaintiff’s motion for default judgment shall include a copy of the contract or other documentary evidence of the original debt, which must contain a signature of the defendant. If no such signed writing evidencing the original debt ever existed, then a copy of the last statement generated when the credit card was actually used for purchase or other competent evidence of the existence of the debt must be included. The motion must also contain a copy of the assignment or other writing establishing that the plaintiff is the owner of the debt. If the debt has been assigned more than once, then each assignment or other writing evidencing transfer of ownership must be attached to establish an unbroken chain of ownership. Each assignment or other writing evidencing transfer of ownership must contain at least the last four digits of the original account number of the debt purchased or other identifying information uniquely associated with the account and must show the debtor’s name associated with that account number.

(d) Setting Aside a Default Judgment. The court may set aside its order granting a motion for a default judgment for good cause, and it may set aside a final default judgment under Rule 60(b).

(e) Judgment Against the State. The court shall not enter judgment by default against the State of Vermont or an officer or agency thereof unless the claimant establishes a claim or right to relief by evidence satisfactory to the court.