Motion to set aside granted, what happens with fee request not orally discussed?

[andresbaker]

What is the name of your state (only U.S. law)? Michigan

A motion to set aside a default asked to (of course) set aside the default, and for attorney's fees and costs. The judge issued an oral ruling that the motion to set aside the default was granted. Neither party nor the judge discussed the fees request. (Written response heavily argued against fees.) What happens with the fees? Is it ambiguous - do we have to go back before the judge? Does granting the motion grant everything within it, including the fee request? Does a judge have to explicitly award fees for them to be owed?

The judge did remark that the default was properly entered, so it doesn't seem like he would support the idea of frivilousness amounting to awarding fees. But I don't know what the process is when it isn't specifically addressed.

 

[justalayman]

I am guessing you are referring to a judgment awarded due to default. If that is what was set aside, then everything the judgment ordered be paid is no longer owed.

whose legal fees and costs are you referring to; the plaintiff or the defendant? I am guessing the plaintiff but your post is not clear on the issue.

 

[andresbaker]

I am guessing you are referring to a judgment awarded due to default. If that is what was set aside, then everything the judgment ordered be paid is no longer owed.

whose legal fees and costs are you referring to; the plaintiff or the defendant? I am guessing the plaintiff but your post is not clear on the issue.

Defendant failed to answer complaint by deadline. Plaintiff had clerk file a default against defendant. Clerk didn't hand sign the entry of default order, because this court now electronically stamps/signs documents. Plaintiff filed motion for default judgment. Defendant filed a motion to set aside default. Both motions (plaintiffs' motion for default judgment, and defendant's motion to set aside) were scheduled for hearing at the same time. Defendant argued the default was not "signed" by the clerk, that the electronic stamp didn't suffice, so said it was improper for plaintiffs to have moved for default judgment without a signed default. (Believe they were trying to say it was a frivilous motion without having a proper default, but they never explained the rationale or used the word frivilous.) Judge said the default was properly entered by the clerk, that they just electronically stamp/sign documents now. Judge said he was granting the motion to set aside the default. No one discussed defendant's motion's request for fees.

Now, one could argue the judge wouldn't approve the defendant asking for fees since he held the default was properly entered, and in effect gave defendant a break for not being very late. But, one cannot really put words into a judge's mouth.

So, I'm confused whether "granting" defendant's motion without specifying no fees orally means the fee request is granted since it was part of the motion... Or if a judge would have to explicitly order fees.

It's an oral ruling, where the defendant is writing and filing an order for the judge to sign... So, there's no written order from the judge to look at.

So, no default judgment was ever entered, and the case is proceeding like it would have had they timely field a response.

 

[Mark Maroon]

Defendant failed to answer complaint by deadline. Plaintiff had clerk file a default against defendant. Clerk didn't hand sign the entry of default order, because this court now electronically stamps/signs documents. Plaintiff filed motion for default judgment. Defendant filed a motion to set aside default. Both motions (plaintiffs' motion for default judgment, and defendant's motion to set aside) were scheduled for hearing at the same time. Defendant argued the default was not "signed" by the clerk, that the electronic stamp didn't suffice, so said it was improper for plaintiffs to have moved for default judgment without a signed default. (Believe they were trying to say it was a frivilous motion without having a proper default, but they never explained the rationale or used the word frivilous.) Judge said the default was properly entered by the clerk, that they just electronically stamp/sign documents now. Judge said he was granting the motion to set aside the default. No one discussed defendant's motion's request for fees.

Now, one could argue the judge wouldn't approve the defendant asking for fees since he held the default was properly entered, and in effect gave defendant a break for not being very late. But, one cannot really put words into a judge's mouth.

So, I'm confused whether "granting" defendant's motion without specifying no fees orally means the fee request is granted since it was part of the motion... Or if a judge would have to explicitly order fees.

It's an oral ruling, where the defendant is writing and filing an order for the judge to sign... So, there's no written order from the judge to look at.

So, no default judgment was ever entered, and the case is proceeding like it would have had they timely field a response.

My comments are only of a general nature:

Your statements above are a little confusing because on the one hand you say that the judge granted the (plaintiff's) motion to set aside the default judgment, but you also say that the judge granted the defendant's motion without specifying no fees.

Usually a motion presented before a judge includes a proposed order for the judge to sign. So your motion, and the plaintiff's motion, should each have included their own proposed order for the judge to sign. The proposed orders could have said something like; "The default judgment is affirmed (or set aside), and defendant's (or plaintiff's) request for fees associated with their motion is granted." Whatever the judge "said" in court does not hold. Whatever the judge wrote holds. If the judge signed one of the parties proposed orders, then whatever that order says is what holds. But if instead the judge simply wrote his own order or modified one of the parties proposed orders such that it said in writing; "The defendant's (or plaintiff's) request affirm (or set aside) the default judgment is granted.", then that is what holds, and nobody was awarded any fees for anything.

Your statement that; "It's an oral ruling, where the defendant is writing and filing an order for the judge to sign... So, there's no written order from the judge to look at." is also a little confusing. It sounds like the defendant included a proposed order for the judge to sign, there were oral arguments on both parties motions at the same time, and the judge made some statement to the effect that the (plaintiff's) motion to set aside the default judgment would be granted (and thus the case would proceed). But I have never heard of a judge issuing an oral ruling on a motion that was not subsequently reduced to something in writing for the court docket. I don't know how long it has been since the oral ruling. Sometimes it can take a while (days/weeks/months) for a judge to get an oral ruling to appear on the docket. Of course if the judge is only signing a proposed order submitted by one of the parties, then it should only take a couple of days to appear on the docket, while in contrast, if the judge has to study the issues involved and issue a 50 page explanation of his decision then the order could take months to appear in the docket.

 

[andresbaker]

Michigan circuit court, at least in my county, acts a little weird in my opinion. Many of the court clerks don't let you file a proposed order with a motion, and reject motions with proposed orders attached instructing you to re-submit them! The judge issues an oral ruling during the hearing for the motion. The prevailing party then electronically submits a written order for the judge to sign in one of two ways. First, they can submit a proposed order which if not objected to by the other parties generally gets signed by the judge after 7 days. Second, they and the other parties can agree to a proposed order (in form only, that it conforms with what the judge said), then the judge generally signs it right away. No written order has been signed by the judge.

So, we're at the stage where what the judge said is being reduced to an order. But, I'm not sure which way the fees request should be handled.

 

[quincy]

Michigan circuit court, at least in my county, acts a little weird in my opinion. Many of the court clerks don't let you file a proposed order with a motion, and reject motions with proposed orders attached instructing you to re-submit them! The judge issues an oral ruling during the hearing for the motion. The prevailing party then electronically submits a written order for the judge to sign in one of two ways. First, they can submit a proposed order which if not objected to by the other parties generally gets signed by the judge after 7 days. Second, they and the other parties can agree to a proposed order (in form only, that it conforms with what the judge said), then the judge generally signs it right away. No written order has been signed by the judge.

So, we're at the stage where what the judge said is being reduced to an order. But, I'm not sure which way the fees request should be handled.

If attorney fees and court costs were not introduced in court by either party and addressed orally by the judge, these fees and costs cannot be included in any order drafted by either of the parties for signature by the judge. Only what was said by the judge can be reduced to writing and be included in the order that is submitted to the judge for signing.

 

[Mark Maroon]

Michigan circuit court, at least in my county, acts a little weird in my opinion. Many of the court clerks don't let you file a proposed order with a motion, and reject motions with proposed orders attached instructing you to re-submit them! The judge issues an oral ruling during the hearing for the motion. The prevailing party then electronically submits a written order for the judge to sign in one of two ways. First, they can submit a proposed order which if not objected to by the other parties generally gets signed by the judge after 7 days. Second, they and the other parties can agree to a proposed order (in form only, that it conforms with what the judge said), then the judge generally signs it right away. No written order has been signed by the judge.

So, we're at the stage where what the judge said is being reduced to an order. But, I'm not sure which way the fees request should be handled.

If I understand it correctly, you are the plaintiff, the judge granted the defendant's motion to set aside the default judgment, and you don't want to have the judge sign an order awarding the defendant's request for fees. Is that correct? I guess given your scheme above for how the court files orders, you can either work out a stipulated order with the defendant or contest the defendant's proposed order if you disagree with the order that they submit. Personally, I would assume that if the judge didn't address either parties request for fees in the oral arguments, and he made no mention of them in his oral decision, then he made no ruling on fees and no fees should be awarded via a proposed order for the judge to sign. If in open court he orally ordered that the default judgment be set aside, then that's it, nothing more, nothing less.

 

[quincy]

If I understand it correctly, you are the plaintiff, the judge granted the defendant's motion to set aside the default judgment, and you don't want to have the judge sign an order awarding the defendant's request for fees. Is that correct? I guess given your scheme above for how the court files orders, you can either work out a stipulated order with the defendant or contest the defendant's proposed order if you disagree with the order that they submit. Personally, I would assume that if the judge didn't address either parties request for fees in the oral arguments, and he made no mention of them in his oral decision, then he made no ruling on fees and no fees should be awarded via a proposed order for the judge to sign. If in open court he orally ordered that the default judgment be set aside, then that's it, nothing more, nothing less.

Yup. That is how it works in Michigan.

Both parties will generally reduce to writing their own understanding of the judge's oral order, although sometimes the judge will assign one attorney the task of drafting the order, to be reviewed and agreed to by the other party prior to submission for the judge's signature. If there is a major disagreement between the parties as to what the judge actually ordered, the judge can revisit the matter.

But if there was no oral order from the judge regarding costs and fees, these costs and fees should not be included in what is presented to the judge for signature.

 

[andresbaker]

. . .But if there was no oral order from the judge regarding costs and fees, these costs and fees should not be included in what is presented to the judge for signature.

OK, just wanted to make sure saying that he was granting the motion didn't indirectly grant costs and fees since the motion asked for it... That a judge would have to explicitly mention costs and fees for those to be presented to the judge in the order to be signed.

 

[quincy]

OK, just wanted to make sure saying that he was granting the motion didn't indirectly grant costs and fees since the motion asked for it... That a judge would have to explicitly mention costs and fees for those to be presented to the judge in the order to be signed.

Well, that depends on exactly what the judge said. If he said the motion "as presented" is granted (or something along those lines), then all elements addressed in the motion could reasonably be considered a part of any order.

Any ambiguity in what was said, or any dispute over what the order includes, however, can be clarified by the judge. Because attorney fees and costs can be substantial, getting clarification might be smart.