1 IN THE UNITED STATES BANKRUPTCY COURT FOR THE

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

IN RE:

CLERK’S INSTRUCTIONS REGARDING

PROCEDURES FOR ENTRY OF

DEFAULT AND DEFAULT JUDGMENT

IN ADVERSARY PROCEEINGS

)

ENTRY OF DEFAULT AND DEFAULT JUDGMENT PROCEDURES

To facilitate entry of default and default judgment, and to inform the bankruptcy bar of the Court’s

preferred practices, the Bankruptcy Clerk has promulgated the following, non-binding procedures

to assist parties in obtaining a Clerk’s entry of default and default judgment:

a. Form of Request/Motion

The Clerk has sample forms for filing a request for entry of default, and for seeking default

judgment from either the Clerk or the Court. These sample forms are located on the

Court’s website, www.wvnb.uscourts.gov under the “forms” tab. The recommended

procedure is to separate the Request for Clerk’s Entry of Default from the Motion for

Default Judgment. Both forms may be filed contemporaneously. The Clerk first

administers the Request for Clerk’s Entry of Default, and then administers the Motion for

Default Judgment. If the defaulting party has appeared, the motion for default judgment

must be served on the defaulting party.

b. Entry of Default

1. Summons

A. Upon the filing of an adversary complaint, the Clerk issues a summons to

the plaintiff for service on each of the named defendants. The summons is

issued through the BNC. Counsel will receive a Notice of Electronic Filing

an be able to obtain the Clerk’s electronic summons within minutes of its

issuance.

B. The plaintiff has 7 days from issuance of the summons to serve the

summons and the complaint (if the complaint has not already been served)

on each of the named defendants. Fed. R. Bankr. P. 7004(e). A

“summons service executed” should be filed with the Clerk evidencing

service within this 7-day period.

C. If the summons is not timely served within the 7 day period, the plaintiff

should request issuance of a new summons.

D. If the defendant is not served within 90 days after the complaint is filed, the

Court may dismiss the complaint on motion or on its own initiative after

notice to the plaintiff, or order that service be made within a specified time.

Fed. R. Bankr. P. 7004; Fed. R. Civ. P. 4(m).

2. Answer

A. Unless otherwise ordered by the Court, once a complaint is served, the

defendant has 30 days after the issuance of the summons to file an answer.

This 30-day period runs from when the Clerk issues the summons – not

from when the defendant receives service of the complaint and summons.

If the complaint and summons is served on the United States, then an answer

is due 35 days after the issuance of the summons and complaint. Fed. R.

Bankr. P. 7012(a).

B. Under Fed. R. Bankr. P. 9006(b)(1), the Court may enlarge the time in

which the defendant has to file an answer. Under that Rule, the request

must be filed with the Clerk on or before the 30 or 35-day period expires,

unless such failure to request an extension was the result of excusable

neglect. The Bankruptcy Rules do not provide for informal agreements

between the parties to extend the time in which to file an answer.

3. Otherwise Defend

The Clerk may not enter default if the affected party has failed to file an answer,

but has “otherwise defended" the claim. Fed. R. Bankr. P. 7055; Fed. R. Civ. P.

55(a). The term "otherwise defend" is not defined in Rule 55, but the term does

include the assertion of those defenses that, under Fed. R. Bankr. P. 7012; Fed. R.

Civ. P. 12(b), may be made by motion rather than in the pleadings.

4. Failure to Prosecute

If it appears to the Clerk that the summons was duly issued and no activity is being

taken in the adversary proceeding, the Court may enter an Order and Notice

providing for the dismissal of the complaint unless cause is shown for non-

dismissal. Generally, 30 days is allowed for the plaintiff to show cause, which is

deemed present if the Plaintiff initiates default procedures and no separate need

exists to respond to the Court’s order regarding dismissal for failure to prosecute

the case.

5. Request for Clerk’s Entry of Default

A. Request for Entry Required

The Clerk will not sua sponte enter default. A party must request that the

Clerk enter a default by demonstrating:

1. timely service of the complaint and summons,

2. failure of the responding party to timely appear or otherwise

defend.

B. The party requesting entry of default may, but need not, state whether the

defaulting party is a minor, incompetent person, or a member of the

uniformed services. While such status will not prevent entry of default,

such status does affect whether and how default judgment may be entered.

C. If the Clerk is satisfied, the Clerk will enter default. Counsel does not need

to provide the Clerk with a form entry for default. The Director of the

Administrative Office of the United States Courts has promulgated

Bankruptcy Form 2600 (12/2015) for this purpose.

D. A defaulting party that has not appeared is not entitled to notice of future

proceedings; provided, however, that the Clerk issues a notice to the

defaulting party before default judgment is considered by the Clerk or the

Court.

6. Vacating Entry of Default

A. The Court may set aside the entry of default for good cause. Fed. R. Bankr.

P. 7055; Fed. R. Civ. P. 55(c).

B. As a general matter, the Court disfavors defaults and prefers that defaults

be avoided and claims and defenses be disposed of on the merits. To set

aside an entry of default, the Court considers:

i. whether the moving party has a meritorious defense,

ii. whether the moving party has acted with reasonable promptness,

iii. the personal responsibility of the defaulting party,

iv. the prejudice to the defaulting party,

v. whether there is a history of dilatory action, and

vi. the availability of sanctions less drastic.

E.g., Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc, 616 F.3d

413, 417 (4

Cir. 2010).

c. Default Judgment

1. Objection Period

After the Clerk enters default, proceedings begin on the motion for default

judgment. If the motion for default judgment has not already been filed, the

plaintiff should file the motion for default with the Clerk. The Clerk generally

issues a 21-day notice to the defaulting party of time to respond to the motion for

default judgment. The notice is issued to all the parties in the adversary

proceeding.

2. Hearing

A. Whether default judgment is to be entered by the Clerk or by the Court, the

Court may, in its discretion, require an appearance by the party seeking

default judgment to establish a prima facie case of entitlement to relief

under the moving party’s legal theories of the case. At any such hearing,

the moving party should be prepared to present evidence and testimony to

the Court. When default judgment is sought against the United States, a

hearing may be required. Fed. R. Bankr. P. 7055; Fed. R. Civ. P. 55(d).

B. If a timely objection is filed to the motion for default judgment, the Court,

in its discretion, will either dispose of the matter on the papers filed, or will

set a hearing on the motion.

3. Multiple Defendants

Before entering default judgment that adjudicates fewer than all the claims, or

adjudicates the rights and liabilities of fewer than all the parties, the Court must

expressly determine that there is no "just reason" for delay in entering a separate

judgment. Fed. R. Bankr. P. 7055; Fed. R. Civ. P. 55(b).

When the Clerk has entered default against one of multiple defendants, and

common questions of law or fact exist between the defaulting defendant and the

remaining parties, the Court may refuse to enter default judgment against the

defaulting party until such time as the common questions of law or fact are

judicially determined. Likewise, the Court may refuse to enter default judgment

against one defendant when other defendants may be jointly and severally liable.

4. By the Clerk

On request, the Clerk may enter default judgment if the following conditions are

met:

A. The damages are for a sum certain or a sum that can be made certain by

computation,

B. The default is based on a failure to appear,

C. The defendant is not a minor or an incompetent person,

D. The defendant is not the United States or an officer or agency of the United

States,

E The claimant provides an affidavit of the amount due,

F. Entering default judgment is purely a ministerial act, and

G. Default judgment resolves all the claims against all the parties and results

in a final, appealable judgment.

5. By the Court

A. Amount of Request

The amount requested for default judgment must not differ in kind from, or

exceed in amount, what is demanded in the pleadings. The Court

determines if the amount of damages is justified by the claims, and may

award less than requested.

B. Minors or Incompetent Persons

Only the Court can enter default judgment against a minor or incompetent

person. Before entering default judgment, the minor or incompetent person

must be represented in the action by a general guardian, conservator, or

other similar fiduciary who has appeared in the action. Under Fed. R. Bankr.

P. 7017; Fed. R. Civ. P. 17, when a minor or incompetent person is a party

and is not represented, the Court must appoint a guardian ad litem or make

some other order it deems proper for the protection of the minor or

incompetent person.

C. The United States

The Court may not render a default judgment against the United States or

an officer or agency of the United States unless the claimant establishes a

claim or right to relief by evidence that satisfies the Court. There is no

admission of the factual allegations. The Court must determine both liability

and damages before rendering a default judgment. Fed. R. Bankr. P. 7055;

Fed. R. Civ. P. 55(d).

6. Vacating Default Judgment

The Court may set aside a default judgment under Rule 60(b). Fed. R. Bankr. P.

7055; Fed. R. Civ. P. 55(c).

d. Servicemembers and Civil Relief Act

The Servicemembers Civil Relief Act, 50 U.S.C. § 501 et seq., provides for the temporary

suspension of judicial and administrative proceedings and transactions that may adversely

affect the civil rights of servicemembers during their military service.

1. Affidavit

The party seeking default judgment must file an affidavit (or other statement

submitted under penalty of perjury) stating whether the non-defending party is in

active military duty. The affidavit must show the specific facts necessary to

support the conclusion stated. If the claimant is unable to determine whether the

defendant is in military service, the affidavit must so state, and provide the facts of

any investigation that was inconclusive. The affidavit may not state a mere

conclusion concerning the defaulting party's military status.

Under 50 U.S.C. § 582(a), (b), a claimant may request from the Adjunct General of

the Army, the Chief of Naval Personnel, and from the Major General Commandant

of the United States Marine Corps a certificate of military service, which is prima

facie evidence of military service. Of course, no affidavit is required if the

defendant is a non-individual business entity.

A. A party may verify military service by telephone from the “Defense

Manpower Data Center Military Verification Information Line” at 703-696-

6762.

B. Information on how to verify active duty service can also be found on the

Servicemembers Civil Relief Act (SCRA) Website:

https://www.dmdc.osd.mil/appj/scra

2. Appointment of Attorney

If the affidavit shows the defaulting party is in military service, the Court must

appoint an attorney for the servicemember.

3. Bond

If, based on the affidavits, the Court is unable to determine whether a defendant is

in military service, the Court, before entering judgment, may require a bond in an

amount approved by the Court. The Court may issue orders or enter judgments as

the Court determines necessary to protect the rights of the servicemember under the

Act.

Updated:

3/17/2016

11/20/2012