Monday, September 21, 2015

Clerk Default

There is a big difference in a clerk's default and a default judgment.  With a clerk's default only, there is an extremely liberal standard in setting it aside. Rule 55(c) of the Mississippi Rules of Civil Procedure draws a clear distinction between setting aside an entry of default and setting aside a judgment of default. The Mississippi Supreme Court previously has held "there is a more liberal standard for setting aside a default than the standard for setting aside a default judgment." Windmon v. Marshall, 926 So.2d 867, 871 (Miss.2006) (quoting King v. Sigrest, 641 So.2d 1158, 1162 (Miss.1994)).   They further stated, "`[G]ood cause shown' ... requires the moving party to provide an explanation for the default or give reasons why vacation of the default entry would serve the interests of justice." Id. (quoting Allstate Ins. Co. v. Green, 794 So.2d 170, 179 (Miss.2001) (Waller, J., concurring)).

My reading of this is that more or less any reasonable excuse is pretty good.  However, the standard is a lot higher with an actual default judgment already entered.  In that instance, you need a really good excuse and normally a good faith colorable defense.  Absent that, the default normally stands. 

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