Information & Instructions: Default judgments

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1.
A default judgment is used to obtain a final judgment when a Defendant after having
been served, fails to answer on a timely basis.
a.
If a default judgment is for a predetermined amount of money, i.e., liquidated
damages, it may be proved simply by the Petition and the supporting affidavits, contracts or
promissory notes.
b.
If the damages are unliquidated, i.e., an amount that must be proved at trial, then a
hearing must be held at the time of the default judgment to prove up the damages.
2.
Prior to obtaining a default judgment, the attorney should satisfy the following minimum
requirements to prevent the judgment from being later overturned:

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a.

The defendant must have been properly served.

b.
If service has been effected through the secretary of state the court file must
contain proof that the citation was actually forwarded to the defendant. Furthermore, the
appropriate certificate from the secretary of state's office should also be included in the court file.
c.
If the defendant was served by substituted service instead of by personal service,
the record must show that the officer used "due diligence" in attempting to serve the defendant.
A proper motion and order for substituted service should be obtained and placed in the court file
prior to the use of substituted service.

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d.
If the defendant has been served by publication, the attorney must have secured an
"attorney ad litem " to represent the defendant.
e.
The citation must be on file with the clerk for at least 10 days prior to the
judgment. See TRCP 107, 239.
f.
If the defendant is in the armed services, special service of citation procedures
must be used. If the defendant is not in the armed services, the Default Judgment should contain
an affidavit attached to the Judgment (and included in the court file) stating that the defendant is
not in the armed services.

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g.
If the damages are liquidated, the Petition and contract should be sufficient to
prove damages. If however, the damages are unliquidated, (not proved by an instrument in
writing), the damages must be "proved up" pursuant to an evidentiary hearing. An example of
unliquidated damages is a reasonable amount of attorney fees for breach of contract.
h.
All default judgments should be accompanied with a certificate of last known
address that states the last known address of the defendant, and the required sailor and
serviceman's report so that the court may mail notice of the judgment to the defendant at that
address.

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i.
attached.
3.

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If attorneys' fees are requested, an affidavit of attorneys' fees should also be

Procedure
a.

Ascertain whether or not damages are liquidated or unliquidated.

b.

Take appropriate steps to "prove up" damages.

c.

Insert the information in the form listed below.

d.

Verify proper service and return date for defendant's answer.

e.

Complete the Default Judgment form.

f.

Complete the Certificate of Last Known Mailing Address.

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g.
Include the affidavit that the defendant is not in the military and the affidavit of
attorney's fees.
h.

File all the above Default Judgment forms with the court.

i.

If damages are unliquidated, set a hearing to prove up the damages.

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j.
Some courts prefer a motion to be filed for default judgment. The motion simply
requests that the court grant the default judgment. Other courts allow the filing and entry of the
default judgment without a Motion.

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Form: Motion for default judgment

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CAUSE NUMBER _____________________

[Name],
PLAINTIFF

IN THE [Type of Court] COURT

[Court number]

vs.
[Name],
DEFENDANT

OF [NAME], COUNTY, TEXAS

MOTION FOR DEFAULT JUDGMENT

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[Name], Plaintiff moves for a judgment against [Name], Defendant.

1.

The Defendant was served on [Date].

2.

Although the Defendant was duly served with process, Defendant failed to appear and

answer. Consequently Defendant has made default.

3.

The return of service has been on file in this cause for at least ten (10) days.

4.

A certified copy of the completed and returned citation is attached to this motion as

Exhibit A.

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PRAYER

Plaintiff prays that the court grant this Motion for Default Judgment and enter a default
judgment against the Defendant.
Respectfully Submitted,
______________________________
[Law Firm Name]

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By ____________________________
______________________________
[Attorneys Name]

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Attorney for Plaintiff
[Attorneys Address]
[Telephone Number]

[Facsimile Number]
[Bar Card Number]

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Form: Default judgment

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CAUSE NUMBER _____________________

[Name],
PLAINTIFF

IN THE [Type of Court] COURT

[Court number]

vs.
[Name],
DEFENDANT

OF [NAME], COUNTY, TEXAS

DEFAULT JUDGMENT

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On ______________ the Court heard Plaintiffs Motion for Default Judgment against

Defendant [Name].
1.

The appeared in person and by and through Plaintiffs attorney of record.

2.

Defendant, [Name] was duly served of process on [date],however, Defendant [Name] failed

to appear on [his or her] behalf, but wholly made default.

3.

The Court finds that the citation with the officer's return has been on file more than ten (10)

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days exclusive of this date and the day of service, accordingly the Defendant has been properly
served with citation of this lawsuit.
4.

The Court therefore finds that the Plaintiff, [Name], ought to recover of and from the

Defendant, [Name], the sum of $[Amount], plus attorney fees in the amount of $[Amount], and that
costs of suit be taxed against Defendant, [Name].
5.

The Court further finds that Plaintiff is entitled to such other and further relief at law or in

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equity to which Plaintiff may show [himself or herself] justly entitled.

It is therefore, ORDERED, ADJUDGED AND DECREED by this Court that Plaintiff,

[Name], should have and recover of the Defendant, [Name], the sum of $[Amount], plus reasonable
attorney fees in the amount of $[Amount], together with all costs expended in this behalf, plus

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interest at the rate of [Amount] percent from entry of judgment and that execution issue.

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Signed on ___________________.

____________________________________
JUDGE PRESIDING
APPROVED AS TO FORM AND SUBSTANCE:
_____________________________
[Law Firms or Attorneys Name]
Attorney for Plaintiff
[Address]
[Telephone & facsimile numbers]
Texas Bar no. [Number]

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APPROVED AS TO FORM ONLY:

_____________________________
[Law Firms or Attorneys Name]
Attorney for Defendant
[Address]
[Telephone & facsimile numbers]
Texas Bar no. [Number]

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Form: Affidavit on attorney fees

The State of Texas
County of ________________

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EXHIBIT "A"
AFFIDAVIT ON ATTORNEY'S FEES
BEFORE ME, the undersigned authority, on this day personally appeared [name], who is
personally known to me as the attorney of record for Plaintiff,[name of plaintiff], and [his or her]
oath being duly sworn, deposed and said:
1.
2.

"I am an attorney licensed to practice law in the State of Texas since [date].

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My Texas Bar Card Number is _____________________.

3.
"I certify that reasonable compensation for the time and effort devoted to the above-entitled
and numbered cause is the sum of $ [Amount]."
4.
"The above-requested attorney fees are based upon the following: [describe the legal work
performed which justifies the attorney fee award].
____________________________________
Affiant's Signature

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Affiant on oath swears that the statements are true and correct based on his or her personal
knowledge and Affiant has:
State of Texas
County of [County Name]
Subscribed and sworn to before me on ____________________ by [Name]
______________________________________________________________.

_____________________________________
Signature of officer
_____________________________________
Notary's typed or printed name

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My commission expires:
______________________
[or Notary's Stamp]

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Form: Certificate of last known mailing address

CERTIFICATE OF LAST KNOWN MAILING ADDRESS

I, the attorney for Plaintiff, hereby certify that based upon a review of Plaintiff's records and records
of the public domain, the last known mailing address of [name], Defendant in the above entitled
cause is
_________________________________________________________________________.
________________________
[Name]
Attorney for Plaintiff

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Form: Affidavit of military status

The State of Texas
County of ________________

NONMILITARY AFFIDAVIT
BEFORE ME, the undersigned authority, on this day personally appeared the undersigned
Affiant, known to me as _____________________, who being by me duly sworn, on oath stated:
1.
2.

"I am attorney of record for [Name], Plaintiff in the above entitled and numbered cause.

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Based on a review of Plaintiff's records and records in the public domain, Defendant,

[Name], was not in any branch of the military service when this suit was filed.
3.

Defendant has not been in military service at any time since then, and Defendant is not

now in any military service of the United States of America."

______________________________
Attorney for Plaintiff

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State of Texas
County of [County Name]

Subscribed and sworn to before me on ____________________ by [Name]

______________________________________________________________.

_____________________________________
Signature of officer
_____________________________________
Notary's typed or printed name

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My commission expires:
______________________
[or Notary's Stamp]

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Information & Instructions: Required check to see if the defendant is an active member of
the armed forces/military-The Servicemembers' Civil Relief Act ("SCRA")

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1.
Prior to obtaining a default judgment you must search the Defense Manpower Data
Centers website to see if the defendant is in the military. You will need the Defendants first
and last name plus his or her social security number.
2.
Then log on to Defense Manpower Data Centers website
https://www.dmdc.osd.mil/scra/owa/scra.home)and perform the search.
3.
Print out the Defense Manpower Data Center report and attach it to the following
affidavit.

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State Of Texas
County of __________

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APPLICANTS SOLDIERS & SAILORS AFFIDAVIT

Before me, the undersigned notary, on this day, personally appeared [Name of person signing the
affidavit]., a person whose identity known to me. After I administered an oath to him, upon his
oath, he said:
1.

"My name is [Name of person signing the affidavit]. I am attorney for the applicant in this

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cause. I am capable of making this affidavit. The facts stated in this affidavit are within my
personal knowledge and are true and correct.
2.

[Name of the Defendant] the Defendant, is not in the military. I have knowledge of this

fact because I requested that the Department of Defense Manpower Data System, an organization of
the U.S. Department of Defense that maintains the Defense Enrollment and Eligibility Reporting
System (DEERS) database, which is the official source of data on eligibility for military medical

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care and other eligibility systems, execute an inquiry as to whether [Name of the Defendant], the
Defendant, is on active duty in any of the armed forces. As a result of this inquiry, it was
determined that the Defendant is not on active duty in the military. Attached is a true and correct
copy of the verification from the Department of Defense Manpower Data Center that indicates
the Defendant is not currently on active military duty.
Respectfully submitted,
[Law Firms Name]

THANK YOU
By [Name of person signing the attorney]
Texas Bar Card No. [Bar card number]
[Attorneys address]
Attorney For Movant

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State of Texas
County of [County Name]

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Subscribed and sworn to before me on ____________________ by [Name]

______________________________________________________________.

_____________________________________
Signature of officer
_____________________________________
Notary's typed or printed name

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My commission expires:
______________________
[or Notary's Stamp]

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Form: Notice regarding default judgment

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[Date]

[Addressee]
Dear [Name]:
I am writing to inform you that a Default Judgment was entered against you On
______________________for $ [Amount].
Since this Judgment was signed over 30 days ago, the Judgment has now been abstracted and filed
in the County Clerk's office in [County,] Texas.

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My client,[name], desires to revolve this matter. I therefore request that you contact me within 10
days of receipt of this letter to work out a payment arrangement.
If I do not hear from you within the above described time period, post judgment collection
procedures may be initiated against you. This can include but is not limited to post judgment
depositions and/or interrogatories. My client can also request the constable to attach all of your
nonexempt property to satisfy the debt.
As you can see, this is a serious situation. To avoid added cost and inconvenience, please contact
me immediately concerning this matter. A copy of the abstracted Judgment is enclosed.

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Sincerely,

[Attorneys name]
Enclosures

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