Should I attend a dismissal hearing after a motion for default judgment has been filed?

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Should I attend a dismissal hearing after a motion for default judgment has been filed?

I was issued a summons, I signed and returned it 8 months ago. I never appeared to answer in court, but I see that about 2 months ago a motion to retain was filed for 30 days. A month later a motion for default judgment was filed. Lastly a dismissal hearing is scheduled for 2 weeks from now. I’m trying to see if my attendance to the proceedings could “stop” anything. After reading the motion to retain it seems there has been a delay in filing the motion for default judgment by the plaintiff. Could my presence in court do anything? What should I bring for the judge?

Asked on August 6, 2011 Texas

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

When you were served with the summons, attached to the summons was the complaint (lawsuit).  The default was filed because you didn't file an answer to the complaint with the court and serve it on the opposing party.  Signing the summons and returning it would not be sufficient to constitute filing an answer to the complaint.  An answer denies the allegations in the complaint.

You can file a motion to set aside the default.  If you succeed in having the default set aside, the case will be back on track and litigation will continue.  You will need to file your motion to set aside the default before the hearing.  You should file it as soon as possible so that you don't miss the filing deadline.  The filing deadline for filing documents prior to a hearing varies from state to state.  At the law library, the law librarian can help you find a sample motion to set aside a default which will give you the general format.  It would be advisable to attend the hearing and present arguments based on what is in your motion to set aside the default as to why your motion should be granted and the case should not be dismissed.  Your arguments shouild include the reason why you didn't file a timely answer to the complaint and the adverse impact that a default and dismissal will have on your case.  If you don't file a motion to set aside the default and don't appear in court, the judge will most likely dismiss the case. 


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