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Default—Adversary Proceedings
Docketing Event
Adversary > Motions/Applications > Motion for Entry of Default
Adversary > Motions/Applications > Motion for Default Judgment
Negative Notice: N/A
Accompanying Orders: Yes. The Court will prepare the order on Motions for Entry of
Default. The Movant will prepare the order on Motions for Default Judgment and Motions
for Default Final Judgment.
Code and Rule References:
Fed. R. Bankr. P. 7004
Fed. R. Bankr. P. 7055
Fed. R. Civ. P. 4
Fed. R. Civ. P. 54
Fed. R. Civ. P. 55
Local Rule 7001-1
Local Rule 7055-2
Local Rule 9013-1
Fee: N/A
Applicable Chapters: 7, 11, 12, 13
Implemented: 2/9/16
Last Revision: 1/23/2018 9:55:57 AM
Description
When a defendant, counter-defendant, or cross-defendant in an adversary proceeding fails to
timely respond to a complaint, counterclaim, or cross claim, they are in default. The plaintiff,
counter-plaintiff, or cross-plaintiff may file a request to have the Clerk enter an Entry of Default
and may file a Motion for Default Judgment.
Motion for Clerk’s Entry of Default:
The process for reviewing and entering a Clerk’s Entry of Default is a clerk’s office function based
entirely on the papers. A summons is issued when a complaint is filed. The summons notifies the
defendant(s) that a response is required within a certain time limit. The summons states: “If you
fail to respond to this summons, your failure will be deemed to be your consent to entry of a
judgment by the bankruptcy court and judgment by default may be taken against you for the relief
demanded in the complaint.”
A motion for entry of default is filed when the defendant, counter-defendant, or cross-defendant
has failed to timely respond. A party may request a default against one or more defendants in a
multi-defendant complaint.
Note: The party can request a default without requesting a judgment by
default. This is often seen if there are multiple defendants. The plaintiff may
wish to receive a default as soon as possible on one defendant while
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pursuing action against the other defendants. The plaintiff later may request
one judgment against all defendants.
Motion for Judgment by Default:
After the Clerk’s Entry of Default, a Motion for Default Judgment may be filed and must meet
specific requirements.
Filing Checklist: Motion for Entry of Default
1. Review the motion to determine if it:
Is signed;
Is properly served and includes a proper certificate of service;
Attorney’s name and address are complete and consistent with the filing attorney’s name
and address in CM/ECF;
Includes an affidavit of non-military service (if default is requested against an individual);
Includes the following statements:
That service was duly effectuated in compliance with the Federal Rules of Bankruptcy
Procedure (“Fed. R. Bankr. P.”);
That no extension of time was sought or obtained by the defendant;
That the defendant failed to file a responsive pleading or motion within the time
specified; and
That the movant seeks an entry of default.
2. Review the docket to determine if the summons, the complaint, and a copy of Local Rule 7001-
1 were served.
3. Review the docket to determine that service of the summons was timely.
Service must occur within seven days if within the United States.
Note: The seven-day requirement does not apply to service in a foreign country.
Service requirements of parties in a foreign country are governed by Federal Rule of
Civil Procedure 4(f).
4. Review service of the summons to determine that service is proper under Fed. R. Bankr. P.
7004.
5. Review the docket for the filing of an answer or other responsive pleading.
If no responsive pleading was filed, determine if the due date has expired.
Note: The time for filing an answer or responsive pleading is 30 days from the
summons service date. For governmental parties, the time is 35 days. These times may
be extended by an order on motion of a party. The due date will be reflected in the
Summons Issued entry.
Filing Checklist: Motion for Default Judgment
1. Review the motion to determine if it:
Is signed;
Is properly served under Fed. R. Bankr. P. 7004 and includes a proper certificate of service;
Attorney’s name and address are complete and consistent with the filing attorney’s name
and address in CM/ECF;
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Includes an attached affidavit in support of the allegations.
2. Verify that a Clerk’s Entry of Default was issued.
3. Submit two orders:
One order that grants the motion; and
A default judgment.
Forms
Motion for Entry of Default by Clerk
Motion for Default Judgment
Affidavit in Support of Motion for Entry of Judgment by Default
Order Granting Motion for Final Judgment
Final Default Judgment
