Monday, December 16, 2013

Kentucky default judgment and the absence of notice

Kentucky Rules of  Civil Procedure 5.01. Service; When Required,  provides, in part,
" Every order . . . every pleading . . . every paper . . .  every written motion . . .  and every written notice, . . . shall be served upon each party except those in default for failure to appear . . . . "
From a plaintiff's point of view, this is good news. Every notice, motion or court order that a defendant might receive is potentially a catalyst to action that inspires a defendant to defend against the plaintiff's claim. Under the Kentucky Rules of Civil Procedure a defendant has virtually perpetual right to contest a default or a default judgment, in theory. As a practical matter, the longer the elapsed time between the default and and a defendant's eventual response, the less likely are the chances for the defendant to carry the day. A motion for relief from a final judgment made pursuant to  K. R. C. P. 60.02 must be made "within a reasonable time," and the grounds for relief are drastically limited after one year.

Consequently, after a default judgment has been entered against a defendant, the defendant's first actual notice of the judgment may be by way of a wage or bank garnishment. A defendant's ability to effectively respond to such an unwelcome development and to assert legitimate objections is severely handicapped due to lack of information. This is a real problem, but it is not an insurmountable limitation.

The first task at hand for any defendant in default  is to trot down to the courthouse that entered the default judgment and to carefully review the Court Clerk's case file for the specific details of the proceedings and paperwork.

(H. I. defendant's checklist)