Virginia allows plaintiffs to obtain default judgment against a defendant that fails to appear in Virginia General District Court. However, there are numerous rules and steps a plaintiff must follow to obtain default judgment. One misstep can cause serious delay and, in some circumstances, dismissal altogether. The Williamsburg Newport News Civil Litigation Attorneys at Collins & Hyman can help ensure that your default judgment is obtained properly and promptly.
Filling out the Forms
The first step to obtaining a default judgment in Virginia General District Court is to make sure pleadings are completed fully and accurately. In order to do so, a plaintiff must select the proper form for his or her cause of action. If a plaintiff files a Warrant in Detinue, for example, when the plaintiff should have filed a Warrant in Debt, that plaintiff will not be able to obtain default judgment.
Plaintiffs must also ensure that the forms are completed accurately. If a plaintiff fails to specify that he or she wants a money judgment, the Court may not allow the plaintiff to obtain a judgment against the defendant. If a plaintiff states that he or she is trying to evict for non-payment of rent when they are actually trying to evict for breach of contract, the Court may not grant that plaintiff possession. There are key pieces of information on each form that a plaintiff must fill out accurately in order to obtain the judgment they seek.
Plaintiffs must also ensure that they choose the proper jurisdiction. If a plaintiff is trying to eject a tenant from his or her rental, the plaintiff cannot file in Williamsburg when the home is in York County. Plaintiffs seeking money owed from a defendant cannot file in Newport News when all the parties live in and the agreement took place in Hampton. Even if a plaintiff follows all the proper steps, the Court may dismiss a cause of action for failure to file in the proper location.
Plaintiffs must also ensure that they allow adequate time for service between the filing date and the first hearing. Usually 30-45 days should be enough if you send the pleading out for service right away. If the party is out of state, 60 days may be more appropriate. Failing to allow proper time to effect service could result in unnecessary continuances and court appearances. It’s always better to be safe than sorry. If a plaintiff thinks service may be difficult, that plaintiff should allow additional time to ensure the defendants can be served before the return date.
Some of the court forms are complicated, and a simple checkmark in the wrong place can change the entire nature of the proceedings. It is always helpful to seek advice from a competent attorney to make sure you are completing everything properly. Hiring Williamsburg Newport News Civil Litigation Attorneys can save a plaintiff significant time, worry, and money.
In order to obtain a default judgment in Virginia General District Court, plaintiffs must ensure they serve the defendant properly. “Service” is a legal term meaning a defendant has proper notice of the pleading. If a plaintiff can’t show the Court that he or she properly served the defendant, that plaintiff will not be able to get default judgment.
Where to Serve
The first step to properly serving a defendant is to know where that defendant lives. If the plaintiff doesn’t have a good physical address, he or she will not be able to serve the defendant without additional steps. Service is usually accomplished by posting the pleading on the door of the primary residence of the defendant. This is called “posted service”. It can also be completed by “personal service,” meaning the pleading is given directly to the defendant. Personal service usually provides a stronger tool to obtain default judgment.
If a plaintiff uses posted service, the plaintiff cannot obtain default judgment unless he or she mails a copy of the pleading to the defendant at least 10 days prior to the hearing. The plaintiff also must send verification to the Court that he or she properly mailed the pleadings. Special consideration should be taken when determining the proper time to mail the pleadings to the plaintiff.
Who can Serve
The second step is to choose who will be serving the pleading. A plaintiff cannot complete Service. A separate, qualified party must affect service. The Sheriff can serve a pleading, and this is often the method of choice for many plaintiffs. It is inexpensive and commonplace, and the Clerk of Court will handle service after pleadings are filed. However, the Sheriff will not keep the plaintiff informed of whether or not the defendant is served. The Sheriff will not provide the plaintiff with an affidavit of service (a document verifying that the defendant received the papers).
An alternative method is to use a private process server. Attorneys often use these services in order to ensure they have the proper documents prior to going to Court. Issues with service can significantly delay obtaining default judgment, so it is important you follow each step carefully.
If a defendant lives out of state, the plaintiff has other options to serve that defendant, including through the Secretary of the Commonwealth. The rules of service of process can be complicated and it is always a good idea to get Williamsburg Newport News Civil Litigation Attorneys involved to ensure that service is proper. Nothing is more frustrating than getting to Court and learning that you have issues with service of process.
Proper Evidence at Court
Once the defendant is served properly and the return date arrives, the plaintiff will go to Court on what is called a “first return.” This is where the judge determines if the matter is contested or if she can enter judgment against the defendant. If the defendant fails to appear and service was proper, the Court can enter default judgment against that defendant. Many plaintiffs think that this is the final step and the judge will automatically grant judgment in the amount requested. However, by law the judge must hear evidence from the plaintiff to prove the damages requested.
Evidence on Affidavit
If you hire an attorney, a Court will generally accept evidence on affidavit. An affidavit is a legal document signed by a person that has knowledge about the damages. For example, a landlord plaintiff may provide an affidavit to the attorney regarding damages, past due rent, and late fees. A creditor plaintiff may provide evidence of the credit contract, current balances, and administrative fees. If a plaintiff is allowed to recover attorneys fees and costs, his or her attorney may submit a declaration showing those costs the plaintiff incurred.
Documentary Evidence and Testimony
If the plaintiff is present either in the plaintiff’s own capacity or with his or her attorney, the plaintiff can provide the same information that would be in an affidavit directly to the Court. The Court will generally swear the plaintiff in. Then, either the judge or the plaintiff’s attorney will ask the plaintiff questions to establish the damages. The plaintiff can present evidence of contracts, account statements, receipts, and other documentary evidence to prove the damages. If the plaintiff can adequately prove the damages he or she sustained, the Court should grant default judgment in that amount.
Servicemembers Civil Relief Act
Prior to granting default judgment, Courts are supposed to require plaintiffs to verify that a defendant is not in military service. The plaintiff or the plaintiff’s attorney submits a form verifying under notary that the defendant is not in the military. The plaintiff must provide facts supporting the statement. These facts can be based on the plaintiff’s personal knowledge or based on public information. Properly completing and submitting the form can avoid unnecessary delay in obtaining a judgment.
Ultimately, different Courts follow the rules in different ways. Some Courts require little evidence to obtain judgment, while others require a great deal more. Hiring an attorney can help you make sure you get default judgment on the first try and avoid unnecessary waste of time and money. Our Williamsburg Newport News Civil Litigation Attorneys at Collins & Hyman are ready to help you protect your rights. Call today for a consultation. 757-645-0827.
Gregory S. Bean is one of the Williamsburg Newport News Civil Litigation Attorneys at Collins & Hyman PLC.