Default Judgment Question

[veronica280]

In a Trespass Action in Delaware's Justice of Peace Court one of the defendants didn't file an answer to my complaint for 36 days (far surpassing the 15 days). When I called the courthouse to ask if a default judgment be entered against them I was told it couldn't because the defendant requested a trial and entered a landlord/tenant counterclaim 41 days after being served the complaint (claiming they weren't given 60 days notice before I moved out and they were unable to rent the apartment in May, June or July so they claim I owe them rent for these months. Both landlord and property manager were verbally given notice as well as written. Their evidence is my signature on a year lease I signed back in 1996 because I never signed a lease thereafter- I went to a month to month lease.) Is it really the law that a default judgment not be entered against them for ignoring where the court states the answer must be returned within 15 days of its receipt? Is there anything I can do?

 

[seniorjudge]

Q: Is there anything I can do?

A: Yes. Go through the trial see who wins. Default judgments are not favored by courts because of not getting your day in court.

 

[dcatz]

OP – Not only are defaults judgments disfavored, you didn’t request one. According to your post, “the judicial preference for a hearing on the merits” is not an issue in this case.

If a default was available after 15 days from date of service, YOU must request it; the court doesn’t enter it automatically. You didn’t request it on the 16th day. You called to check at some later time and, by then, one defendant had responded AND filed a counter-claim. There is no place for what shoulda/woulda happened.

If there are other defendants who are still subject to default and have done nothing, you can request their default. Perhaps it reduces the number you litigate against. But as to the one that filed before you sought a default, you have only SJ’s option: advance your own case and defend against the counter-claim.