A default judgment is granted by the trial court when a defendant hasn’t filed a timely response. This means that a defendant did not respond to the lawsuit by 10 a.m. on the Monday after 20 days has elapsed from the date of service as dictated by Rule 83 of the Texas Rules of Civil Procedure. Notwithstanding a defendant’s failure to answer, a defendant may vacate a default judgment by timely filing a motion for new trial.
Motion for New Trial
A successful motion for new trial removes the default judgement and allows the defendant the opportunity to try their case on the merits. This motion must be filed within 30 days after the default judgment has been signed and must be accompanied by a supporting affidavit. (Tex. R. Civ. P. 329b).
Contents of the Motion
When considering a defendant’s motion, the Court will apply the factors set forth in Craddock v. Sunshine Bus Lines, Inc. :
1. Movant’s failure to appear or respond was not intentional or the result of conscious indifference.
2. Movant can articulate a meritorious defense.
3. Granting the new trial will not cause injury or undue delay to the opposing party. Craddock v. Sunshine Bus Lines, Inc., 134 S.W.2d 124.
The motion and its affidavit should be drafted with these factors in mind and provide an outline of how the relevant facts apply to the above criteria.
Chances of Vacating Default Judgments
Chances of vacating a default judgement and receiving a new trial are generally very high. Texas courts have previously excused a defendant’s failure to answer because of forgetfulness, busyness, belief that case was in settlement negotiations, and lack of awareness of hearings and trials. (Todd Smith, Maitreya Tomlinson Defaults Judgments in Texas 23 (2012). Additionally, proving that a defendant has a meritorious defense is generally a very low bar. Once a defendant meets the first two factors in the Craddock test, the burden shifts to the plaintiff who must show that vacating the default judgment would cause undue delay or injury.
Strict deadlines apply when facing a default judgment; however, Texas courts are generally very liberal in ordering that such judgments be vacated. Be sure to get in touch with an attorney as soon as possible to avoid missing your window to have a judgement removed..
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