Landlord/Tenant When the Defendant Fails to Respond

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UD: Landlord (Plaintiff) & Tenant (Defendant)

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Ways to Avoid a UD
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  Before Filing
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  When Defendant Fails to Respond

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Landlord/Tenant: What happens if the defendant doesn’t answer
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The Defendant’s rights
How to figure out the defendant’s deadline to respond
Ask for a defendant’s default
When to ask for a default judgment for restitution of the premises
Ask for a clerk’s judgment
Ask for money damages

A Defendant’s Rights
- Time limits
- Different deadlines
- How do I know if a defendant responded?
- Late responses
- Separate defaults
- What happens if the defendants don’t answer?
- Time limits:
  
  All defendants have 5 days to file a response after they’re served with the summons and complaint. A lot of defendants wait until the last day to respond.
- Different deadlines
  
  The defendants can have different deadlines to answer. They might have been served on different days or in different ways. YOU have to keep track of the deadline for every defendant.
- How do I know if a defendant responded?
  
  When a defendant files a response, they have to send you a copy of the response. They’ll mail it to the address you put on the complaint. But, the only way to make sure is to go to the court and look at the court file.
- Late responses:
  
  If the defendant missed the deadline to respond, they can file a late response. The defendant can’t do this if you already applied for a default.
  
  If the defendant files a response on the same day you file your application for default, the court will accept the one that’s filed first. If you file your application first, the court enters default and rejects the defendant’s response. If the defendant files first, the court denies your application for default and the case moves forward.
- Separate defaults:
  
  If you want to ask for a default, you can treat every defendant separately. If one defendant missed the deadline to respond, but another still has time left, you can ask for a default for the defendant who missed the deadline. Or, you can wait all the deadlines to pass. Then you can ask for a default for the defendants that don’t answer.
  
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- What if the defendants don’t answer?
  
  If the defendants don’t answer, file a:
  - Request for Entry of Default,
  - Request for a Clerk’s Judgment for restitution of the property, and
  - Request for a Court Judgment for money damages.
How to figure out the Defendant’s Deadline to Respond
- Start of response period:
  The defendant’s deadline to answer starts on the day after the day they were served.
  - Personal service:
    
    Personal service is the day the defendant gets the papers. If the defendant gets the summons and complaint on the 1st, the 5-day period to answer starts on the 2nd and ends on the 6th. You can file for default on the 7th.
  - Other types of service:
    
    Substitute service and service by posting and mailing don’t end until 10 days after the server sends the papers. If the server mails the papers on the1st, the service period doesn’t end until the 11th. The 5-day period to answer starts on the 12th and ends on the 16th. You can file for default on the 17th.
- Holidays and weekends:
  
  Weekends and holidays count as days unless it’s the last day to respond. If the defendant gets the summons and complaint by personal service on a Monday, the 5th day to respond is a Saturday. So, the defendant has until Monday to respond. You can file for default on Tuesday.
Ask for a Defendant’s default
- Timing
- Fill out the form
- File and serve
- What the clerk does
- Effect of default
- Timing:
  
  You can ask the court to enter the defendant’s default if they missed the deadline to file a response.
- Fill out the form:
  
  Use Form UD-116.
- File and serve:
  
  You have to file the Request for Entry of Default in the Clerk’s office. And you have to mail a copy to every defendant. Serve the defendant at the address where they got the summons and complaint. You can ask the Clerk to file your form while you wait.
  
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- What the clerk does:
  
  The Clerk looks at the proof of service of the summons and complaint. The clerk has to make sure the defendant missed the day to answer. The Clerk looks in the court file to make sure that the defendant didn’t file a response.
  If they didn’t, the Clerk will enter the defendant’s default.
- Effect of default:
  
  If the court enters the defendant’s default, the defendant can’t fight your request for a judgment. This doesn’t mean you’ll win automatically.
  
  Another defendant can file a response. Then you’ll have to prove your case. Even if all the defendants default, you won’t win money unless you prove your case. You can prove your case using sworn declarations or testimony.
When to ask a default judgment for restitution of the premises
- If some of the defendants respond:
  
  If some of the defendants answer, you can’t get a default judgment until you prove your case against the defendants that responded.
- If you didn’t serve the people who aren’t named:
  If you don’t serve the people who aren’t named, you can ask for a default judgment for restitution of the premises after you have the default of all of the named defendants.
- If you served the people who aren’t named:
  If you served the people you didn’t name with a summons, complaint, and prejudgment claim of right to possession, you have to wait until you have the default of all the named defendants. And you have wait for the deadline for the people not named in the complaint to file a claim. The people you didn’t name have 10 days from the day they get the papers to file a prejudgment claim of right to possession.
Ask for a clerk’s judgment
- Fill out the form
- Same form
- Clerk’s Judgment
- Writ of Possession
- File and serve
- What the clerk does
- What the sheriff does
- Fill out the form:
  
  Use Form CIV-100. Fill out the top left side of the form. Check the box that says you’re asking for a Clerk’s Judgment.
  
  Fill out items 1(a), 1(b), 1(c), 1(e), 3, sign and date. Fill out items 4, 5, 6, sign and date. Fill out item 8, sign and date.
  
  You don’t have to fill out items 1(d), 2, or 7.
  
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- Same form:
  
  In a lot of cases, you can ask for a Clerk’s Judgment at the same time as a default.
  
  For example, if you don’t serve the people you didn’t name, AND you ask for default for ALL of the defendants you named, you can ask for a Clerk’s Judgment at the same time. You can use the same form.
- Clerk’s judgment:
  
  Use Form UD-110 (Judgment - Unlawful Detainer). Fill out the top left side of the form. Check the box that says you’re asking for a judgment “by Clerk”, “by Default”, and “Possession only”. Also, fill out item 1.
- Writ of Possession:
  
  You have to fill out a Writ of Possession on state form EJ-130. Check the box that says you’re asking for “possession of real property”. Also fill out items 1, 3, 4, 5, and 9 on the 1st page and item 9(a) on the 2nd page.
- File and serve:
  
  You have to file the Request for Clerk's Judgment in the Clerk’s office. And, mail a copy to every defendant at the address where they got the summons and complaint. You can ask the Clerk to process your papers while you wait.
- What the clerk does:
  
  The Clerk reviews your request. If it’s appropriate, the Clerk issues the Clerk’s Judgment and Writ of Possession. The original copy of the judgment goes in the court file. If you brought an extra copy, the Clerk will endorse it and give it to you. You get the original Writ of Possession.
- What the sheriff does:
  
  You have to bring the original Writ of Possession to the Sheriff to evict the defendants. The Sheriff posts a Notice of Eviction at the property. The defendants have 5 days to leave. If they don’t leave, the Sheriff can make them leave.
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Ask for money damages
- Timing
- Fill out the form
- Sworn declaration
- Court judgment
- File and serve
- Enforce the judgment
- Timing:
  
  You can’t ask for money damages unless you:
  - Ask for a Clerk’s Judgment,
  - Already got a Clerk’s Judgment, or
  - The defendants already moved out.
- Fill out the form:
  
  Use CIV-100. This is the same form you use to ask for Entry of Default and ask for a Clerk’s Judgment. Fill out the top left side of the form. Check the box that says you’re asking for a Court Judgment. Fill out items 1(a), 1(b), 1(c), 1(d), 2, 3, sign and date. Fill out items 4, 5, 6, sign and date. Fill out items 7, 8, and sign and date.
  
  You don’t have to fill out item 1(e) if you already got a Clerk’s Judgment.
- Sworn declaration:
  
  You have to give the court a sworn declaration that proves the money you ask for.
  
  The declaration should say:
  - The address of the property
  - What the relationship is between the plaintiff and defendant. This is usually a landlord-tenant relationship
  - Facts that back up the unlawful detainer. Usually, this is that you served the defendant with a 3, 30 or 60 day notice and they didn’t do what the notice said
  - Facts that prove the damages. This is how much rent was due when you served the 3-day notice, the fair rental value of the property for 1 day.
- Court judgment:
  
  Use Form UD-110 (Judgment - Unlawful Detainer). Fill out the top left side of the form. Check the box that says you’re asking for a judgment “by Court”, “by Default”, Also fill out item 1(e).
- File and serve:
  
  File the Court Judgment in the clerk’s office. Mail a copy to every defendant. Send it to the address where you served them with the summons and complaint.
  
  When you file, give the Clerk your sworn declaration and your Court Judgment. It takes the Court one week to file these papers. Give the court an extra copy of the judgment and a self-addressed stamped envelope.
  
  If a judge makes a Court Judgment, the clerk can endorse a copy and mail it back to you.
- Enforce the judgment:
  
  Enforcing a judgment can be complicated. Often, defendants won’t pay voluntarily. Talk to a lawyer or collection agency.
  
  Look at the Court’s web page about how to collect money judgments.