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Summons to respond and default judgement?

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brennajean

Junior Member
What is the name of your state? AZ

I dont know if this is the right forum for this question so if its not kindly tell me what is?

Background:
What happened is I was in a n accident in jan 2006, i was at fault and uninsured (i know thats bad thats not the issue) well ive been trying to work with the other drivers insurance company about paying for the damage to the vehicle, but they also sent me a bill for chiropractic care, which i told them, based on what they had given to me as proof, that i was not responsible for the chiropractic bills, and if they felt i was to provide proof that it was neccisary based on the accident. I hadnt heard from them since oct 2006, until recently they sent me a summons to respond. At that point since they had hired lawyers i was no longer going to handle this myself, and have been trying to obtain legal representation. I am not financially able to afford 125 or more an hr for a lawyer so i am working with a community legal help program that has pro bono lawyers available. and the process for being approved for these services is a long one and i wont know until the end of this week if i will get legal help.

When i checked my mail yesterday there was an application for default judgement against me from the insurance companys lawyers. My question is, am I beyond help in regards to fighting this? or would they, once they are my legal reps, be able to override that because i was trying to get legal help and it wasnt my fault they have these requirements? or could they appeal to the judge that signed these documents because i am trying to take care of this situation? i hope i explained it clear enough, i have informed the lawyers i spoke to and the comm legal serv reps of the letter I got. What i guess im asking is havei already lost or will we still have a chance in fighting this?

Thanks for any help you can provide.
 


Rexlan

Senior Member
What is to fight? You were at fault and that carries responsibility. They are entitled to the judgment and it is up to you to prove otherwise since you are at fault.

You didn't have insurance and that is a MAJOR issue ... Are you now driving without insurance and a license?

Arizona requires that every motor vehicle operated on the roadways be covered by one of the statutory forms of financial responsibility, more commonly called liability insurance, through a company that is authorized to do business in Arizona. This includes golf carts, motorcycles and mopeds.


Minimum levels of financial responsibility are:

$15,000 bodily injury liability for one person and $30,000 for two or more persons
$10,000 property damage liability
 

brennajean

Junior Member
Im aware of AZ's insurance laws and i am insured. Just at the time there was a lapse and unlucky me had an accident during that time.

With that said please reread my post.

I am aware that i am at fault and am not talking about that, i am disputing medical services that were not because of the accident. ive gone over that with the attorneys that will be hopefully helping and they are in concurrence that i am not liable for what they claim are because of the accident (they are not)

What i was inquiring about is the default judgement possibility, not the specifics of the case itself. I wanted to know how i can stop a default judgement and who it would need to be presented to and the process involved.
 

dcatz

Senior Member
If their filing was proper and correct, you’re not going to be able to stop the default judgment, but you probably have a reasonably good chance of getting it vacated and your case heard.

By the time you received notice, the court had also received the request for default and judgment. If they had done everything properly up to that point, a default would be entered, preventing you from filing a response, and that’s the only way to preclude it.

There is a way out, if a default judgment is entered, and virtually every state has it somewhere in their statutes. For you, it’s Rule 60(c) of the Arizona Rules of Civil Procedure, and it reads as follows:

Mistake; inadvertence; surprise; excusable neglect; newly
discovered evidence; fraud, etc. On motion and upon such terms as
are just the court may relieve a party or his legal representative
from a final judgment, order or proceeding for the following
reasons: (1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence which by due diligence could not
have been discovered in time to move for a new trial under Rule
59(d); (3) fraud (whether heretofore denominated intrinsic or
extrinsic), misrepresentation or other misconduct of an adverse
party; (4) the judgment is void; (5) the judgment has been satisfied,
released or discharged, or a prior judgment on which it is based has
been reversed or otherwise vacated, or it is no longer equitable that
the judgment should have prospective application; or (6) any other
reason justifying relief from the operation of the judgment.


Courts prefer that litigants have their “day in court” and that disputed issues are resolved on their merits rather than that a party lose that right by default. So, once you get things straightened out with your “legal reps”, the first thing they need to do is to file a motion asking that the default be vacated. The grounds would probably be excusable neglect – you were attempting to get representation and respond, but you got caught up in the bureaucracy. It usually doesn’t take much, because the court is leaning in favor of a hearing on the merits anyway.

The concerns about the soft tissue injury and excessive chiropractic treatment are understandable. I'm not saying they exist in your case, but they are not an uncommon element of vehicular injury claims.
 

brennajean

Junior Member
Thank you, that makes sense.

On the Application for default judgement it states that "if the party claimed to be in default fails to file a responsive pleading or otherwisedefend in this action within 10 days of the filing of this application the default judgement will be entered against the party."

I was called back by a paralegal and was told that in the meantime (so i dont default while waiting for their processes in being assigned a lawyer) if i was intending to defend myself (obviously thats what obtaining an attorney is for) than i could just respond to the courts and the plaintiffs legal reps..... i want to know because as a paralegal i think he was cautious to give me anything that could be construed as legal advice (i was studying to be a paralegal for a while and i know the limitations of a paralegal) so he didnt tell me where to send the statement how to say it and if it could be faxed.

would that be something i send to the superior court of az? or is there somewhere in particular i should look up a number for? and is it ok to fax it? is there like a template i can follow to properly express my intent to have myself defended regarding this matter?
 

dcatz

Senior Member
That’s very interesting. I don’t practice in AZ, I didn’t read all of your statutes to respond to you and I’d never heard of a state that gave a “grace period” (respond within 10 days of the default request filing and you’re still timely). If that’s the case, I wouldn’t want to see you lose any more time.

I don’t know how far your paralegal training went and, without further research, I’m shooting from the hip until an AZ attorney comes along. If you can get a responsive pleading in, it’s the court filing that’s more important than serving the plaintiff, because that’s what will prevent the default. You know it’s to be filed in the court in which the case was filed. I’d suggest that you contact the court identified on the Summons to see if you can do a fax filing. In my state, probably about 50% of the courts have that technology in place, and the remainder doesn’t, as yet, so it’s always necessary to inquire. If you have the time to get a response filed, then serve by mail on the adverse party (they’ll learn anyway, when their default request is rejected).

As for a template pleading, I can’t immediately help you. There’s the court for samples of other case filings and there’s the law library. If it were me, and I didn’t have a “proper form” and I had a time squeeze, I’ll tell you the “work-around” that I’d use: I’d file a General Denial of the whole Complaint, just to have a filing. Maybe not quite cricket but practical, because it prevents the default. I’d reason thusly:
1) You’re going to pay a fee for the filing.
2) For a proper fee, the court will accept anything – write it in crayon on a post-it – it’s not their business to give legal advice and I want to prevent a default. So my filing is going to be something like:
Comes now JANE DOE (“defendant” herein) and answers the Complaint on file as follows:
1. Defendant denies generally and specifically each and every allegation of the Complaint on file herein.
(Add Affirmative Defenses, if you wish)
Date, sign and file.

3) If it will fly in AZ, that’s enough. If it doesn’t work, the plaintiff now has to file a Motion to Strike to get rid of the defective/deficient Answer, before it can proceed with the default. That probably buys me anywhere from 30-45 days before the Motion is heard. In that time, I can cement my position with my “legal reps”, let them take over the case and I can also file an Amended Answer (no additional cost because no prejudice). That one will be proper and compliant, if the first one wasn’t, and it obviates the hearing on the Motion, because now there is a proper response on file.
Not the kind of game playing I like to see, do or recommend, but, if you’re stuck and it works, it works.
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Geeze: I had written "write it in crayon on [a particular kind of napkin placed under drinks]" and the first four letters got me expergated. Lesson learned, moderators.
 
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