4.12Defaults and Default Judgments

MCR 4.201(G)(5)¹ and MCR 2.603 apply to defaults and default judgments in summary proceedings.²

If the defendant fails to appear on the date and time noticed by the summons, the plaintiff may motion the court for entry of a default, and the court may hear the plaintiff’s proofs in support of judgment if:

•personal service of process was made on the residential defendant under MCR 2.105, or service of process was made on the residential defendant under MCR 4.201(D) and the court mailed a second copy of the initial summons and complaint in a court envelope and a record was kept pursuant to MCR 4.201(D), or service of process was made on the commercial defendant under MCR 4.201(D); or

•the plaintiff pleads and proves, with notice, a complaint under MCL 600.5714(1)(b), (d), (e), or (f) sufficient to meet statutory and court rule requirements; or

•the defendant also fails to appear on the date and time in which the trial was adjourned under MCR 4.201(K)(1); or

•the defendant appears on the date and time noticed by the summons but fails to appear on the date and time in which the trial was adjourned under MCR 4.201(K)(1). MCR 4.201(G)(5)(a).

If the court is satisfied that the complaint has met pleading and proof requirements and a default should be entered under MCR 4.201(G)(5)(a), it must enter a default judgment pursuant to MCL 600.5741 and MCR 4.201(L). MCR 4.201(G)(5)(b).

The default judgment must be mailed to the defendant by the court clerk and inform the defendant that he or she may be evicted from the premises and may be liable for a money judgment, if applicable. MCR 4.201(G)(5)(b).

“If the plaintiff fails to appear, a default judgment as to costs under MCL 600.5747 may be entered.” MCR 4.201(G)(5)(c).

Under MCR 2.603(B)(1)(a)(i), notice of a plaintiff’s intent to request entry of a default judgment must be given to the defaulted party if the defaulted party’s agent has entered a general appearance in the action by answering the plaintiff’s request for discovery. Brooks Williamson and Assoc, Inc v Mayflower Constr Co, 308 Mich App 18, 27 (2014). Where service was not timely, an additional summons must be issued at the plaintiff’s request; the additional summons has the same effect as the original summons. MCL 600.5735(3).

Unless a jury demand under MCR 4.201(G)(4) was made or good cause is shown under MR 4.201(K)(1)(c), the trial must be adjourned for at least seven days, but not more than fourteen days, if a default is not entered and the case is not otherwise resolved. MCR 4.201(G)(5)(d). If the court adjourns the proceedings because of one party’s failure to appear, that party must be notified by mail of the new date. Id.

Costs awarded in summary proceedings are described in MCL 600.5759 and include costs in the same amounts as in other civil actions in the same court. MCL 600.5759(1); MCR 4.201(L)(4). See also MCR 2.625. MCL 600.5759(1) expressly allows a court to award a maximum cost of $75 in cases of default judgment.

MCR 2.603(D) addresses setting aside a default or a default judgment. “A motion to set aside a default or a default judgment . . . shall be granted only if good cause is shown and a statement of facts showing a meritorious defense, verified in the manner prescribed by MCR 1.109(D)(3), is filed.”³ MCR 2.603(D)(1). See also MCR 2.612 (relief from judgment). However, “when it is shown that [a] party did not receive notice of [an] opponent’s intent to request a default judgment[ as required under MCR 2.603(B)(1)], the requirement in MCR 2.603(D)(1) that a party must show a meritorious defense to set aside a default judgment constitutes a denial of the constitutional right to due process, and . . . that portion of the court rule is unenforceable as applied to a party who has not been provided adequate notice.” Brooks Williamson and Assoc, Inc v Mayflower Constr Co, 308 Mich App 18, 35, 36 (2014) (citations omitted). For more information on defaults and default judgments, see the Michigan Judicial Institute’s Civil Proceedings Benchbook, Chapter 4.