Article the Constitutionality of Judgments by Confession: Some Practical Considerations

• Publication year: 2015
• Pages: 22

Article The Constitutionality of Judgments by Confession: Some Practical Considerations Vol. 28 No. 3 Pg. 22 Utah Bar Journal June, 2015

May, 2015

Joshua L. Lee, J.

Judgments by confession are authorized under Utah Code Section 78B-5-205, and the procedure for obtaining a judgment by confession is set forth in Rule 58A(f) of the Utah Rules of Civil Procedure. A judgment by confession was a recognized procedure in Utah even before Utah achieved statehood in 1896, Bacon v. Raybould, 4 Utah 357,10 P. 481, 511 (Utah 1886), being historically referred to as a "cognovit judgment" or a "judgment on warrant of attorney." Utah Nat. Bank v. Sears, 44 P. 832,832 (Utah 1896). Judgments by confession have traditionally been viewed by the judiciary with a great degree of skepticism, being characterized by one court as "the loosest way of binding a man's property that ever was devised in any civilized country." Alderman v. Diament, 7 N.J.L. 197,198 (Sup. Ct. 1824).

Like most civil litigation attorneys in Utah, I regularly negotiate judgments by confession as part of settlement agreements, and I have had occasion to seek their entry in courts. A recent experience prompted me to research and evaluate the due process concerns inherent in such a procedure. As discussed below, Utah's procedure for obtaining judgments by confession is generally a proper vehicle for enforcing a debt and does not violate a defendant's constitutional right to due process of law.

My client sought to recover under contracts with two different defendants. The contracts, which contained provisions for judgments by confession, were virtually identical. Likewise, the affidavits and proposed judgments that I prepared were virtually identical. I filed the paperwork in the same courthouse on the same day and at nearly the same time. Being separate cases, each was assigned to a different judge.

In one case, judgment was promptly entered. In the other case, the court issued a ruling entitled "Ruling Denying Judgment by Confession." That ruling stated, in relevant part,

Rule 58A, URCP, authorizes the Court to enter judgment based upon confession of the Defendant where authorized by statute. Judgment by confession is authorized by U.C.A. § 78B-5-205....

The judgment requested, based upon default in the terms and conditions of an agreement, determined solely by the Plaintiff without any mechanism for recourse or review, would be entered without any mechanism for review or even...