There are occasions when a defendant does not appear in a lien enforcement lawsuit or otherwise timely respond to the complaint. Many of us intuitively consider the next step to be an application for default judgment pursuant to Indiana Trial Rule 55. Recently, my colleague Chris Jacobson and I discussed the benefits of foregoing a T.R. 55 motion and proceeding directly with a T.R. 56 motion for summary judgment. Secured lenders and their counsel should consider this approach in Indiana matters.
Is it proper? The first question is whether a plaintiff can file a motion for summary judgment before an answer, or even an appearance, has been filed by a defendant. The answer appears to be yes. T.R. 56(A) states that “a party seeking to recover upon a claim . . . may, at any time after the expiration of twenty (20) days from the commencement of the action . . . move . . . for summary judgment in his favor upon all or any part thereof.” (Under T.R. 3, an action is commenced by the filing of a complaint, by paying the filing fee and by furnishing the clerk with the required copies of the complaint and summons.) Nothing in T.R. 56 (or T.R. 55) suggests that a motion for summary judgment cannot be utilized when an application for default judgment could be. Case law supports the notion that a T.R. 56 motion is appropriate against a party eligible to be defaulted. Anderson v. The Broadmoor Corporation, 363 N.E.2d 1042 (Ind. Ct. App. 1977); see also, Royalty Vans v. Hill Brothers, 605 N.E.2d 1217, 1219 (Ind. Ct. App. 1993):
[Defendant] very well might have been vulnerable to the entry of a default judgment in this case . . . .. However, the court clearly acted pursuant to [Plaintiff’s] motion for summary judgment and entered judgment only after [Plaintiff] had met its burden of demonstrating that there was no genuine issue of material fact for trial.
Is it better? Applying for a default judgment is fairly quick and easy, and courts essentially focus only on whether there has been good service of process and whether the defendant has failed to timely respond to the complaint. It’s sort of a technical knockout. (See my post, “What If A Borrower Ignores A Lender’s Foreclosure Suit?”) A summary judgment, while a bit more labor intensive to obtain, provides a more definitive result. The court’s decision is on the merits. The court in Anderson, 363 N.E.2d at 294-95 noted, for example:
A summary judgment qualifies as a final judgment and a trial court may award “the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” A T.R. 55 judgment is limited to the amount prayed for in the pleadings.
In addition, Indiana courts are geared toward setting aside default judgments. T.R. 55 has a specific subsection about setting aside a default and specifically refers to T.R. 60(B). T.R. 60(B) also applies to summary judgments, but the cases we’ve reviewed show quite clearly that setting aside a summary judgment is a more difficult proposition. Furthermore, Indiana has specific legal policies stating that default judgments are not favored. There is a strong judicial preference for deciding cases on their merits and for giving litigants their day in court. Summary judgments tend to meet those standards. Default judgments tend not to.
Is notice documented? An important matter, implicit in the Anderson opinion, is to prove that the defendant had notice of the summary judgment proceedings. In instances of unrepresented parties, one way to do this is to provide the party, by certified mail, with copies of the motion and any order setting the matter for hearing. (A hearing is not mandated by T.R. 56, unless a party requests one, but it is fairly common for Indiana trial courts to hold a hearing.) Lender’s counsel then can attach the letter(s), with the certified mail return receipt(s), to an affidavit for submission to the court. If the plaintiff can show that the defendant had actual notice of the proceedings, but failed to take any action, then such proof reduces dramatically the chances of setting aside the judgment in the trial court or overturning the judgment on appeal. Conversely, the easiest way for a defendant to get a second chance is to convince a court that it did not know about a motion or a hearing.
Think MSJ. There is no right or wrong answer to the question of whether to pursue relief through a default judgment or a summary judgment. The circumstances of the particular case should guide the decision. A T.R. 55 default judgment arguably can occur more quickly and with less expense. Having said that, a summary judgment, as opposed to default judgment, should result in more conclusive, definitive relief that is less prone to being set aside on technical grounds. In such cases, the defendant’s recourse may be limited to an appeal, which should be futile if the undisputed facts and the law support the judgment. Ultimately, my advice for secured lenders and their counsel is to bypass a default and to seek a summary judgment. (For more on summary judgments in the foreclosure context, please see my post, “Motion For Summary What?”)
I would like to thank my colleague Chris Jacobson for her thoughts on this issue, and I would like to credit our summer associate, Julia Bochnowski, for assisting me with the research for this post, particularly while I was on vacation last week.