Default, default judgment and opposition

It may happen that you do not appear in court on time if you have a subpoena received If you do not appear on time, you will be declared in default. There may be various reasons for this:

• you did not see the summons in time;
• you or your lawyer forgot to report to the court;
• you have it court fee not paid or not paid on time;
• or you do it deliberately to get extra time (you have to be careful with this, though; see below).

If the court grants you a default judgment, the proceedings can continue without you, as the defendant, presenting a defense. If there are multiple defendants, the proceedings will proceed in the normal manner (defense, hearing, etc.), but with one less defendant. If there was only one defendant, a judgment will usually be rendered, unless the default is remedied in time.

Not having a lawyer in court proceedings can also lead to a default judgment.

In most court cases, it is mandatory to hire a lawyer to defend you. Exceptions are cases in summary proceedings or matters at the cantonal court. If you do not engage a lawyer in proceedings where a lawyer is mandatory, or if that lawyer does not report on time, you will also be declared in default. The summons always states whether it is mandatory to engage a lawyer. For example, it may state that you “Not in person, but through a lawyer” must appear before the judge.

This is how you can clean the miter

If there is only one defendant and they fail to appear, the court will immediately determine the date on which a ruling is done. Until that ruling is made, the default can be remedied. Remedying a default is done by the defendant or their lawyer reporting to the court. If this is done in time, the judge will then determine the date on which the substantive defense must be submitted. Sometimes this is abused. By first allowing the default to stand and then rectifying it in time, a postponement is obtained. However, there is a risk involved in this. Usually, a date is set for the judgment two weeks after the first hearing date, but there are known cases in which a default judgment was handed down immediately.

Default judgment: usually granting of the claim

If no defense is presented, the judge cannot, of course, take the defenses into account. Therefore, the judge can only base his ruling on what the plaintiff says and on the documents that the plaintiff submits in the proceedings. The judge then only considers whether he finds the claim unjustified or unlawful is. If this is not the case, the judge will award the plaintiff's claims in full. Usually, such a default judgment enforceable declared. This means that the claimant can immediately proceed with execute.

Received a default judgment? Here's what you can do

If you have received a default judgment, there are often still options for challenging it. There are two options. If there was one defendant and they failed to appear, or if there were multiple defendants and they all failed to appear, you can challenge the default judgment by filing an objection. An objection is filed by issuing a writ of objection. This summons the plaintiff to appear in court. The notice of opposition must immediately contain all defenses against the original claim. The original defendant is summoned in opposition proceedings. opponent mentioned. The claimant opposed.

If there were multiple defendants and one of them did appear, then opposition is not possible. The judgment therefore also applies to the defendant who failed to appear, as a judgment after hearing both sides. You will then be in appeal have to go. About that situation goes this blog.

Common mistakes when cutting on the bias

Quite a few mistakes are made in matters concerning default, rectifying default, and lodging an objection (or appeal). A few examples:

1. It is relatively common for the wrong legal remedy to be chosen, for example, an appeal instead of an objection, or vice versa. If you discover that you have chosen the wrong legal remedy and the deadline for choosing the correct legal remedy has expired in the meantime, you have a problem. The default judgment then becomes irrevocable.
2. Another common mistake is to assume that the judge will only issue a default judgment after 14 days. However, if this does not happen and a default judgment is issued immediately, you can still appeal against it, but you will then be left with a negative judgment. And it is not always possible to successfully stay of execution It may therefore be very unwise to deliberately fail to appear in court.
3. In addition, many mistakes are made with regard to the time limit for lodging an objection, or the moment at which that time limit starts to run is overlooked. The following section deals with this.

Note: Resistance period is short and start time differs

In principle, you have four weeks after a default judgment to appeal against it. However, the moment at which this period starts varies. It can start:

• the moment when the judgment is delivered to the defendant in person means;
• if the defendant does something that shows he is aware of the judgment, or;
• the day on which the judgment was enforced.

If the defendant has no known place of residence or abode in the Netherlands at the time the opposition period commences, the period shall be 8 weeks instead of 4.

Lawyer specializing in procedural law in default judgments

As mentioned above, many mistakes are made in relation to default judgments. This is partly because the deadlines are short and the starting point is not always clear. Often, the wrong legal remedy is used. If you have been convicted in absentia, it is therefore wise to consult a litigation lawyer as soon as possible. Speed is important because your lawyer must read the entire file, prepare the defense, and serve the summons for the appeal within the time limit available for the appeal. Therefore, take contact Contact the litigation lawyer at Lexys Advocaten if you have received a default judgment.