Avoiding Procedural Pitfalls When Moving to Open Default: A Roadmap
When a defendant fails to timely answer a complaint and the 15-day grace period to open default as a matter of right has closed, all hope is not lost. Fortunately for defendants who find themselves in default, Georgia law disfavors the drastic sanction of a default judgment. Accordingly, O.C.G.A. § 9-11-55(b) provides a means for opening default:
At any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with trial.
Georgia courts have encouraged the liberal application of this rule, but a defendant must satisfy five procedural requirements to be entitled to relief. These procedural requirements – payment of costs, a showing under oath, a meritorious defense, an offer to plead instanter and an announcement of ready for trial – are critical prerequisites that must be satisfied before a court may consider whether grounds for opening default exist. Thus, a court’s authority to liberally apply the rule permitting the opening of default hinges on a defendant’s strict compliance with these prerequisites.
Accordingly, it is important not to lose sight of the procedural requirements when formulating your plan of action to open default.
A Roadmap for Satisfying the Procedural Requirements
Payment of Costs
The first condition under § 9-11-55(b), the payment of costs to open default, is likely the easiest to satisfy. Prior to filing a motion to open default, a defendant should ensure that costs are paid and make a record of the payment so there is no question this condition was satisfied.
A Showing Under Oath
A defendant can make a showing under oath in one of two ways: submitting an affidavit in support of the motion to open default or attaching a verified answer. Satisfying this condition requires an open line of communication with the defendant, who must understand the urgency of the situation. The defendant will have to execute the affidavit or verification before a notary public, which could be a logistical problem for some defendants, such as those in remote locations. Consider the defendant’s ability to locate and appear before a notary so that you can anticipate logistical issues and assist where necessary.
Setting Up a Meritorious Defense
It is critical to note a meritorious defense must be set forth under oath. This condition does not require a defendant show she will “completely defeat plaintiff’s claim,” but the defendant must demonstrate that “if relief from default is granted, the outcome of the suit may be different from the result if default stands.” Johnson v. Am. Nat’l Red Cross, 253 Ga. App. 587, 590 (2002). The defendant must outline in some detail the factual basis for her meritorious defense. Thus, careful attention must be paid to a defendant’s verified answer or affidavit to ensure the defendant sufficiently details a meritorious defense under oath. This step may be tedious and require some investigation of the underlying allegations, but failure to set forth a meritorious defense under oath will prove fatal to a motion to open default.
Offering to Plead Instanter
A defendant satisfies the fourth condition by demonstrating she is ready to answer immediately, i.e., by attaching an answer to the motion to open default. Provided the answer outlines a meritorious defense in some detail (and is not simply a general denial), conditions two, three and four may in some cases be satisfied by filing a verified answer with the motion to open default.
Announcing Ready to Proceed with Trial
The fifth and final condition may be satisfied by including an announcement within the motion to open default that defendant is ready to proceed with trial.
Practical Considerations
Once the procedural conditions are satisfied, a defendant must still demonstrate that grounds for opening default exist, but this determination is within the court’s “sound discretion,” which is particularly broad with respect to “proper case” grounds. O.C.G.A. § 9-11-55(b); see also Axelroad v. Preston, 232 Ga. 836, 837 (1974). By satisfying each of the five statutory conditions, a defendant authorizes a court to exercise this discretion. Do not let a procedural deficiency derail an otherwise viable motion to open default.
Opening default is a time-intensive endeavor, but with prompt action and attention to detail, it is possible. When triaging a case with a defendant in default, clients should be prepared to work quickly and closely with defense counsel to formulate a plan, identify a meritorious defense and determine the best format for presenting that defense under oath. Immediate contact with the defendant is crucial, and a private investigator may prove helpful in establishing this communication quickly. Opening default may be intimidating to some defendants, but with careful planning and clear communication, overcoming this hurdle is achievable.
Attorney Contact Info
Mollie Beth Amick
molliebeth.amick@swiftcurrie.com
404.888.6175