Civil Procedure—Default Judgment Void Where Defendant Appears & No Hearing

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BYS Inc. v. Smoudi, 627 Ariz. Adv. Rep. 16 (App. Div. I, February 9, 2012) (J. Orozco)

WHERE DEFENDANT APPEARS AFTER NOTICE OF DEFAULT BUT BEFORE JUDGMENT AND NO HEARING HELD DEFAULT JUDGMENT VOID

Plaintiff sued the defendant for breach of a lease agreement. The defendant did not timely answer and the plaintiff properly filed a Notice of Default and Sought a Default Judgment. However before the judgment was entered the defendant filed a document entitled “Application for Default Entry of Default, Request for Time Extension” with the court claiming it had been given an extension to answer by the plaintiff and was attempting to negotiate a settlement. The default judgment was later issued without a hearing because the default was for a sum certain. The Arizona Court of Appeals voided the default judgment finding that once the defendant made an “appearance” in the case the judgment could not be entered without notice and a hearing on the damages.See Ariz Rule of Civ Pro 55(b)(2).

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