Default, default judgment and opposition

If you have a subpoena received have or are summoned by the court in petition proceedings, the summons or notice will state when you must appear in court. It also states whether an attorney is required. If a defendant does not appear in the proceedings, on time or in the proper manner, the court will issue a default judgment against that defendant. Default means that the proceedings can still be conducted without the defendant being present and defending. This can have far-reaching consequences.

Mitre purging

If default is granted, the court also immediately sets a date on which it will render judgment. Because since the defendant has not appeared and is not defending the case, no adversarial hearing will take place either. Until the court makes the judgment pronounces, the default can still be cleared. The defendant then still reports to the court. The court then grants a period of time for the defendant to present that defense. Caution is required: although the period within which the default judgment can be discharged is usually 14 days, there are cases in which the court rules immediately on the first serving day. It is therefore not advisable to deliberately make a default of appearance in order to stall for time. Always consult a trial lawyer before you do.

Default judgment

Because no defense was raised, the court rules on the basis of the contentions contained in the summons and the exhibits attached to the summons. Since this has not been refuted, the claims in a default judgment are usually granted in full. This is different only if the claims leave the court unlawful or unfounded appearance. In addition, the default judgment enforceable declared if so claimed.

Appeal after default judgment

Appeal against a judgment in absentia is not possible: this is only possible in the case of a judgment in deference, in which the defendant has thus appeared. However, the defendant can still take action against a judgment in absentia, namely by entering an objection. Then the original defendant must issue a writ of opposition, in which he or she immediately includes all defenses against the claim. Thus, the writ of opposition is the defense (or: statement of reply) to the summons. The opposition reopens the proceedings.

Note: Resistance period is short and start time differs

The deadline for filing an opposition is short (four weeks) and the starting time may vary. The opposition period starts when the judgment is delivered to the defendant in person means, if he performs an act showing that he is aware of the judgment or on the day the judgment is enforced. The opposition period is eight weeks if the defendant has no known residence or domicile in the Netherlands at the time the opposition period starts.

Also note in case of multiple defendants

If there were multiple defendants and one of them did appear, then opposition is not possible because the judgment is then considered a judgment by adversary. About that situation goes this blog.

Default judgment: consult a lawyer

Because the time limit for opposition is short and the starting point is not always clear, it is wise to consult a lawyer as soon as possible if you have been convicted in absentia. This is because within the four (sometimes eight) week period, the file must be studied, the full defense prepared and the defense summons served. Therefore, take contact on with Lexys Lawyers if you have received a default judgment.