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Rule 55 – Default

May 14, 2021 | Civil Procedure, Vermont

(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 least18 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 Default or 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. No judgment by default shall be entered 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.
(f)Credit Card Debt. In actions based on a credit card debt, the motion for default 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 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.

Vt. R. Civ. P. 55

Amended Jan. 11, 1972, eff. May 1, 1972; Nov. 9, 1987, eff. March 1, 1988; Jan. 20, 1992, eff. March 2, 1992; Oct. 11, 2006, eff. Dec. 11, 2006; May 7, 2009, eff. July 6, 2009; July 1, 2015, eff. Sept. 1, 2015; July 14, 2017, eff. Sept. 18, 2017; amended Sept. 20, 2017, eff. Jan. 1, 2018; amended Nov. 5, 2019, eff. Jan. 6, 2020.

Reporter’s Notes-2020 Amendment

Rule 55 is amended to reflect the needs of current practice and to modernize language and make it consistent throughout the rule.

The requirement of subdivision (a) for a separate entry of default by the clerk is eliminated in favor of a provision allowing the party seeking relief to file a motion for default judgment to initiate the process. The provision for entry of default as originally adopted in 1971 from Federal Rule 55(a) was intended to facilitate the provision of what was then Rule 55(b)(1) requiring the clerk on the plaintiff’s request and affidavit of the amount due to enter judgment when the amount was, or could be computed to be, a sum certain. Federal Rule 55(a) and (b)(1) retain those provisions with minor modifications. Vermont Rule 55(b), however, was substantially modified in 1972, requiring, in a revised paragraph (b)(1), a formal application for any default judgment and providing, in revised paragraph (b)(2), for the clerk to enter judgment for a sum certain “upon order of the Presiding Judge issued without notice and hearing.” The practice under former paragraph (b)(1) was deemed to impose “an undesirable responsibility upon clerks who may lack the necessary legal or fiscal training to carry it out.” Reporter’s Notes to 1972 Amendment. Thus, the formal separate entry of default in subdivision (a) is both unnecessary and superfluous.

Rule 55(a) has been further amended to follow the Federal Rule by the deletion of “as provided by these rules,” so that an indication of an intent to defend, even if not in compliance with the rules, does not trigger the rule.

Rule 55(b), making clear the application of the rule to any pleading seeking affirmative relief, is former Rule 55(d), redesignated without change in language.

Rule 55(c) is former Rule 55(b). The introductory sentence of the former rule has been deleted as unnecessary. The first sentence of former Rule 55(b)(1), now Rule 55(c)(1), requiring an application to the court for a default judgment, is deleted as superfluous in light of the provision for a motion added to subdivision (a). The 4 sentence added to paragraph (1) makes clear that the party seeking a default judgment has the burden on the issue of minority and must disclose any information in that party’s possession on the issue of competency.

Rule 55(c)(2) is amended to eliminate the reference to entry of judgment by the clerk on order of the judge by providing simply that the court, that is the judge, enters judgment. It is also amended to use the more-generic terms opposing party and moving party in recognition of the fact that default can be sought by parties other than the plaintiff. The time for notice in Rule 55(c)(4) has been changed from five to seven days to allow for increasing slowness in the mail. Rule 55(c)(6) has been amended to make clear that there must be a motion and a hearing under paragraph (c)(4). Other minor verbal amendments are made in Rules 55(c)(3)-(7) for consistency with the preceding amendments.

Rule 55(d), formerly Rule 55(c), has been revised for consistency with the amendment of Rule 55(a) eliminating the formal entry of default. The amendment preserves the distinction presently noted in Vermont cases between setting aside the judge’s ruling on a motion for default and setting aside a final judgment of default.

As noted above, former Rule 55(d) is now Rule 55(b). The minor verbal amendments in Rule 55(e) are for consistency with the preceding amendments.

Reporter’s Notes-2018 Amendment

Rule 55(b)(4) is amended to extend its 3-day time period to 5 days consistent with the simultaneous “day is a day” amendments to V.RC.P. 6.

Reporter’s Notes-2017 Amendment

Rule 55(c) is amended to adopt the amendment to F.R.C.P. 55(c) effective December 1,2015. The federal rule was originally amended in 2007 as part of the general restyling of the Federal Rules. The 2015 amendment inserted “final” in the last clause, to make clear that the standards of Rule 60(b) apply only to a judgment that is “final” because it disposes of all claims among all pmiies, or because the judge has directed entry of final judgment under Rule 54(b). In the absence of finality, the judgment may be revised at any time under Rule 54(b). See Federal Advisory Committee’s Note to 2015 amendment ofF.R.C.P. 55(c).