Chapter 5 - § 5.2 DEFAULT PROCEDURE

• Jurisdiction: Colorado

§ 5.2 Default Procedure

§ 5.2.1 Prosecuting a Default Judgment

If service of process has been properly obtained and no response has been received within the requisite time, the party bringing the claim may try to obtain a default judgment. Although the party moving for the entry of default is generally a plaintiff, it can also be a counterclaimant or a cross-claimant. In this section, the party seeking default will be referred to as the plaintiff and the party against whom a default judgment is being sought will be referred to as the defendant.

After no response is received within the requisite time, the plaintiff can move for the entry of a default, supporting the motion with an affidavit stating that (1) service was properly made on the defendant, and (2) the defendant failed to respond. See Form 5-1: Motion for Entry of Judgment (JDF 104). According to C.R.C.P. 55, upon receipt of a proper motion for entry of default and supporting affidavit, the court clerk must enter a default against the defendant.⁸ After an entry of default has been obtained, the party seeking the default judgment will then need to move the court for entry of a default judgment.⁹ If a defendant files a response to the complaint after the motion for entry of default has been entered but before the entry of a default judgment, the court should allow the case to proceed on the merits and set aside a default.¹⁰

If the party to be defaulted or its attorney has entered an appearance in the case, that party must be given three days' written notice before a hearing on the motion for entry of default judgment.¹¹ What constitutes an "appearance" for these purposes has been the subject of debate, but the case law indicates that the defendant must have shown interest in defending the action to the court—not just to opposing counsel.¹² For example, defense counsel should be wary of relying on any informal "understanding" with plaintiff's counsel that no responsive pleading to a complaint is necessary during settlement discussions. Defense counsel needs to give some indication to the trial court that he or she will be defending the action.¹³ To protect the client's interest and avoid a default judgment, defense counsel should file a motion for extension of time to respond during any preliminary negotiations and not rely on the plaintiff's counsel's sense of fair play.

In Colorado, as in most other jurisdictions, failure to give proper notice will constitute a due process violation and can result in the vacating of the judgment.¹⁴

Because C.R.C.P. 55 does not specifically state what documents a party must provide when asking for a default judgment, a local practice standard was issued at C.R.C.P. 121 § 1-14, detailing exactly what documents are necessary. Section 1-14 provides that a party seeking a default judgment must provide: (1) the original summons showing proper service made pursuant to C.R.C.P. 4; (2) an affidavit signed by the plaintiff or the plaintiffs attorney stating the "facts showing that venue of the action is proper;" (3) an affidavit or affidavits by the plaintiffs attorney showing that the defendant is "not a minor, an incapacitated person, an officer or agency of the State of Colorado, or in the military service;" (4) an affidavit by a person with knowledge of the facts, not the party's attorney, attesting to the amount of damages and interest being requested, along with the basis supporting those amounts; and (5) if attorney fees are being sought, an affidavit supporting the amount and reasonableness of the fees, as well as the basis for the entitlement to fees (such as a statute or an agreement). Additionally, if the motion for entry of default judgment is based on a promissory note or other instrument, the original note must be provided, so that the court may make a notation of the judgment on the face of the note. If the original note is to be returned to the moving party, it is replaced in the court file by a photocopy.¹⁵

A proposed order granting the motion for entry of default judgment must include: (1) the name of the parties against whom the judgment is to be granted (and if there is more than one, whether the relief is against them jointly or severally); (2) the name of the parties in favor of whom the judgment is being granted; (3) the fact that venue has been examined and is proper; and (4) the amount, including any interest...