I sued two former partners for breach of loans. One partner appeared in case and the other has not. I entered default against non- appearing partner. One of the cause of action I asserted was fraudulent transfer between two former partners. One set of request for admissions ask non- appearing partner to admit he transferred assets to the other partner for purpose of evading paying me. Can I ask the Court to admit the RFA of non appearing partner? A lawyer friend told me that the only thing a court can hear for a party in default is request to vacate, so that a motion to admit by me is moot. Is that right? Thank you. L.A, california
No. A party in default has no rights or obligations in the litigation, other than to make a motion to set aside the default. Your lawyer friend is correct.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
Employment / Labor Attorney
I think we need to clarify our terms. If you have already filed a Request for Entry of Default and that Request has been returned to you by the court with a designation that it has been entered, then the defendant is in default. If the party has not yet responded but the Request has not been entered by the court, the party is in potential default, but is not yet defaulted.
A party in default is out of the case. You win, essentially. You cannot send them written discovery or even notice their deposition unless you treat them as a third party to the lawsuit by subpoenaing them to the depo. The court cannot admit prior-served RFAs or hear any motions to compel.
A party in potential default is still a party, and the court still has the power to grant motions regarding discovery. However, on a practical level, courts may actually wag their fingers at you for not having timely sought the entry of default. You are required to diligently do so after a failure to appear by the other side.
I hope this helps clarify things. Good luck to you.
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Your lawyer friend is right. The defaulted party cannot participate in the litigation. The only time you can perform discovery is a post-judgment discovery in aid of execution in order to find out what assets the defendant has.
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Criminal Defense Attorney
The other attorneys are correct, but I think what you're missing here is that entry of default means *you win*. You don't need RFA. An entry of default is essentially a judgment that everything you alleged in your complaint is true. You can take that entry of default and use it to get whatever it was you asked for in the original lawsuit. It's an enforceable judgment. Just initiate proceedings supplemental to get what you want from the guy that defaulted.
Note that the default is only good against the defaulting party. You still have to litigate against the other defendant as per normal, and nothing you do with the defaulting party is going to affect the litigation with the non-defaulting party.
This answer does not constitute legal advice and does not establish an attorney-client relationship.