Kenneth Vercammen's Law Office represents individuals and companies involved in serious litigation matters. In a Civil Suit, a Complaint and Case Information Statement is prepared by the Plaintiff's attorney. These are then filed in the Superior Court, Law Division. After the Complaint is filed, the plaintiff's attorney will prepare a Summons and have the defendants personally served with the Summons and Complaint. The defendant generally only has 35 days after service of the Summons and Complaint to have their attorney file an "Answer to Complaint" Details on Answer are set forth in the following Rule 4:6-1:
RULE 4:43. DEFAULT Rule 4:43-1. Entry of Default If a party against whom a lawsuit has been filed fails to file a formal " Answer to Complaint", failed to plead or otherwise defend as provided by these rules or court order, or if the answer has been stricken with prejudice, a default can be requested. The Plaintiff's Attorney can make a formal written request of the clerk for the entry of the default, supported by the attorney's affidavit. The affidavit shall recite the service of the process and copy of complaint on the defendant or defendants (if more than one, naming them), the date of service as appears from the return of the process, and that the time within which the defendant or defendants may answer or otherwise move as to the complaint, counterclaim, cross-claim, or third-party complaint has expired and has not been extended. The request and affidavit for entry of default shall be filed together within 6 months of the actual default, and the default shall not be entered thereafter except on notice of motion filed and served in accordance with R. 1:6 on the party in default. If defendant was originally served with process either personally or by certified or ordinary mail, the attorney obtaining the entry of the default shall send a copy thereof to the defaulting defendant by ordinary mail addressed to the same address at which defendant was served with process.
4:43-2. Final Judgment by Default When a default has been entered in accordance with R. 4:43-1, except as otherwise provided by R. 4:64 (foreclosures), a final judgment may be entered in the action as follows: (a) By the Clerk. If the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit setting forth a particular statement of the items of the claim, their amounts and dates, a calculation in figures of the amount of interest, the payments or credits, if any, and the net amount due, shall sign and enter judgment for the net amount and costs against such defendant, if not a minor or mentally incapacitated person. If prejudgment interest is demanded in the complaint the clerk shall add that interest to the amount due provided the affidavit of proof states the date of defendant's breach. If the judgment is based on a document of obligation that provides a rate of interest, prejudgment interest shall be calculated in accordance therewith; otherwise it shall be calculated in accordance with Rule 4:42-11(a). If the claim is founded upon a note, check or bill of exchange or is evidenced by entries in the plaintiff's book of account, or other records, a copy thereof shall be attached to the affidavit. (b) By the Court. In all other cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against a minor or mentally incapacitated person unless that person is represented in the action by a guardian or guardian ad litem who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, that party (or, if appearing by representative, the representative) shall be served with notice of the motion for judgment filed and served in accordance with R. 1:6. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any allegation by evidence or to make an investigation of any other matter, the court may conduct a proof hearing or take such proceedings as it deems appropriate, and in that event, if the defendant was originally served with process either personally or by certified or ordinary mail, the attorney for the claimant shall give notice of the proof hearing to the defaulting defendant by ordinary mail addressed to the same address at which process was served. In tort actions involving multiple defendants whose percentage of liability is subject to comparison and actions in which fewer than all defendants have defaulted, default judgment of liability may be entered against the defaulting defendants but such questions as defendants' respective percentages of liability and total damages due plaintiff shall be reserved for trial or other final disposition of the action. If application is made for the entry of judgment by default in deficiency suits or claims based directly or indirectly upon the sale of a chattel which has been repossessed, the plaintiff shall prove before the court the description of the property, the amount realized at the sale or credited to the defendant and the costs of the sale. In actions for possession of land, however, the court need not require proof of title by the plaintiff. If application is made for the entry of judgment by default in negligence actions involving property damage only, proof shall be made as provided by R. 6:6-3(c). (c) Conformance of Judgment With Pleading; Service of Judgment. Whether entered by the clerk or the court, the final judgment shall not be different in kind nor exceed the amount demanded in the pleading, except that in continuing causes, installments coming due after the filing of the pleading but before entry of judgment may be added to the amount of the demand stated in the pleading. Within seven days after receipt of the executed judgment from the court, the proponent of the judgment shall serve a copy thereof on the defaulting defendant as required by R. 1:5-2 except that service may be made by ordinary mail alone. (d) Failure to Apply for Judgment Within Six Months. If a party entitled to a judgment by default fails to apply therefor within four months after the entry of the default, the court shall issue a written notice to the party entitled to apply for entry of default judgment advising that the action will be dismissed without prejudice when six months have elapsed following the date of the entry of default unless within said period the party files application for entry of default judgment or by affidavit shows exceptional circumstances for the delay in seeking the judgment. If exceptional circumstances are shown, the court shall issue an order extending the time for entry of the judgment for a specified period, which may be further extended on motion. An application for entry of default judgment made after the expiration of six months following the entry of default shall not be granted except on notice of motion filed and served in accordance with R. 1:6.
4:43-3. Setting Aside Default [Vacating Default] For good cause shown, the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with R. 4:50.
The following is a portion of a Motion successfully used by Kenneth Vercammen's office in Vacating a default:
....... Please Take notice that the undersigned, attorney for n1, will apply to the above named court, at the m1 Court House, _____, New Jersey, pursuant to the 5 day Rule and R 6:3-3 for an Order: To Vacate Default and Permit Defendants to File Answer and Counter-Claim
Please take further notice that the undersigned shall rely upon the certification of Kenneth A. Vercammen in support of this motion.
"NOTICE. IF YOU WANT TO RESPOND TO THIS MOTION YOU MUST DO SO IN WRITING. Your written response must be in the form of a certification or affidavit. That means that the person signing it swears to the truth of the statements in the certification or affidavit and is aware that the court can punish him or her if the statements are knowingly false. You may ask for oral argument, which means you can ask to appear before the court to explain your position. If the court grants oral argument, you will be notified of the time, date, and place. Your response, if any, must be in writing even if you request oral argument. Any papers you send to the court must also be sent to the opposing party's attorney, or the opposing party if they are not represented by an attorney."
PLEASE TAKE FURTHER NOTICE that this motion is filed with the court pursuant to Rule 1:6-2 and that unless an objection by any of the parties hereto is received within 5 days, or unless otherwise directed by the court, the movant shall submit the within application for decision by the court upon the papers and without the necessity of oral argument.
Dated: ________________________________________________ KENNETH A. VERCAMMEN, ESQ. Attorney for n1
CERTIFICATION OF MAILING
The undersigned hereby certifies that the original Notice of Motion, Certification and all supporting papers have been filed directly with the m1 County Motions Clerk, New Jersey. It is further certified that a copy of the Notice of Motion, Certification and all supporting papers have been served by regular mail upon all counsel and individuals indicated in the Notice of Motion.
Dated: _________________________________ KENNETH A. VERCAMMEN Esq. Attorney for n1
Certification in Support of Motion 1. I am an attorney at law of the State of New Jersey. I represent n1 and am fully aware of the facts and circumstances of this Motion. 2. The Summons and Complaint were mailed to defendants in _______3. They had initial difficulty obtaining counsel.4. On _________________, I spoke with , attorney for plaintiff. He indicated he would not object to the default being vacated. A Consent Order Vacating Default and Extending Time to Answer was forwarded to plaintiff's attorney. (Exhibit A). -. We have not received the signed Consent Order. -. Numerous defenses exist to the complaint as set forth in the enclosed Answer and Counter-Claim. The defenses are
There is no prejudice to plaintiff if this motion is granted. - We request the court grant this motion to vacate default and permit the filing of the Answer and Counter- Claim. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.
Dated: KENNETH A. VERCAMMEN
ORDER TO VACATE DEFAULTThis matter having been opened to the Court upon motion of Kenneth A. Vercammen, Esq. , attorney for n1 for an Order to Vacate Default and Permit Defendants to File Answer and Counter-Claim,
and the Court having considered the Certification submitted, documents attached in support of the Motion, and the argument of counsel, if any, and for good cause shown,
it is on this _____ day of ______________________
ORDERED that the Default is Vacated and Defendants are Permitted to File Answer and Counter-Claim
FURTHER ORDERED that a copy of this order be served upon all Counsel within ten (10) days.
_______________________________J.S.C.
The court will not automatically vacate default. We recently in 2004 opposed a Motion to Vacate Default and submitted this brief:
LEGAL BRIEF FOR ATTORNEYS FEES AS CONDITION TO VACATE DEFAULT
The Appellate Division recently ruled attorneys fees are to be imposed as a condition to vacating a default judgment.
REGIONAL CONSTRUCTION CORP. v . RAY, ___ NJ Super. ____ Decided December 11, 2003 [A-2510-02T2] in an opinion written by Judge Fischer, determined attorneys paid to the plaintiff attorney rather than bond should be required.
Defendant Lawrence V. Ray (Ray) moved to have a default judgment vacated one month after its entry. His motion was granted on the condition that a bond be posted in an amount in excess of the judgment. Because such a condition was neither justified by the circumstances nor proportionate to any prejudice suffered by plaintiffs, we reverse and remand.
R. 4:50-1 permits the granting of relief from judgments or orders "upon such terms as are just." Little has been written about the application of this aspect of the rule, although it has been determined that "terms" may include a requirement that the defaulting party post a bond in the amount of the default judgment as a condition of vacatur.
It is fair to conclude, from these out of state authorities, that the imposition of terms pursuant to R. 4:50-1, while discretionary, should be judged against the relative strength or weakness of the movant's application and will be sustained only when reasonably proportionate to the prejudice suffered by plaintiff. The power to impose terms is not to be used to punish or sanction the defaulting party. Instead, the power should be invoked when necessary to relieve the plaintiff of any attending prejudice. Where the only prejudice to plaintiff has been the expenditure of costs and attorneys' fees in the pursuit of the default judgment or in responding to the motion to vacate, then the exercise of discretion with respect to the imposition of terms should be limited accordingly. This is the type of term most appropriately imposed and most commonly utilized, as we have previously indicated. Davis, supra, 317 N.J. Super. at 102; see also Annotation, Conditioning the Setting Aside of Judgment or Grant of New Trial on Payment of Opposing Attorney's Fees, 21 A.L.R. 2d 863 (1952). The federal courts have also taken the same approach in issuing relief pursuant to Federal Rule of Civil Procedure 60(b). See Annotation, Propriety of Conditions Imposed In Granting Relief From Judgment Under Rule of Civil Procedure 60(b), 3 A.L.R. Fed. 956 (1970); 10A Wright & Miller, Federal Practice and Procedure, §2700; Thorpe v. Thorpe, 364 F.2d 692, 694 (D.C. Cir. 1966).
As a result, we conclude that the term which will ordinarily suffice to alleviate any prejudice to the plaintiff is the reimbursement of plaintiff's fees and expenses as a condition of vacating the default judgment. This is particularly true where the judgment has been in effect for only a brief period of time before the motion to vacate is filed. In that circumstance, a plaintiff's expectations regarding the legitimacy of the judgment and the court's interest in the finality of judgments are at their nadir. Accordingly, in most cases the only terms which are, in the words of R. 4:50-1, "just" are those which restore plaintiff to the status quo ante, namely the reimbursement of the fees and costs expended in seeking the default judgment and in opposing the motion to vacate. As set forth in Pressler. Current NJ Court Rules, Comment R 4:50-1 (Gann) in setting aside a default judgment, the court may impose terms, including the award of counsel fees for obtaining the default judgment and defending the motion to set aside.
CONCLUSION: If facing a civil suit, immediately consult with a civil attorney to prevent a default from being entered against you. CALL KENNETH A. VERCAMMEN, ESQ. 732-572-0500 for an appointment
About Kenneth Vercammen:
Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 17 miles north of Princeton. He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving.He has published 125 articles in national and New Jersey publications on municipal court and litigation topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, hearings and contested administrative law hearings.Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.
