A notice of intent to take default is a formal warning sent to a defendant who missed the deadline to respond to a lawsuit, telling them that the plaintiff is about to ask the court to treat them as having given up their right to defend. In federal court, the response deadline is typically 21 days after service of the complaint; state deadlines usually run 20 to 30 days. If you’ve received one of these notices, you have a short, final window to act before the case moves toward a judgment you won’t easily be able to undo.
What the Notice Actually Does
The notice sits between two separate events that are easy to confuse. A “default” is a status the court clerk enters on the record when a defendant fails to respond on time. It means the defendant has lost the right to contest the plaintiff’s allegations, but no money has been awarded yet. A “default judgment” is the later court order that actually resolves the case in the plaintiff’s favor and can be enforced.
The notice of intent is the plaintiff’s warning shot before asking the clerk to enter that default. In some jurisdictions a plaintiff is required to send it; in others it’s a courtesy or a local-rule requirement. Either way, for the defendant it’s the clearest signal available that the case is real, the clock has already run, and the next filing will start the march toward an enforceable judgment.
Getting from default to default judgment depends on the type of claim. When the plaintiff is owed a specific dollar amount that can be calculated from the face of a contract or invoice, the court clerk can enter the judgment without a hearing, so long as the defendant isn’t a minor, isn’t legally incompetent, and never made any appearance in the case.1Legal Information Institute. Federal Rules of Civil Procedure Rule 55 – Default; Default Judgment For everything else, the plaintiff has to ask the judge, who may hold an evidentiary hearing to decide the damages.
When a Plaintiff Can File One
Two things have to be true before a plaintiff can file a notice of intent to take default. The defendant must have been properly served with the lawsuit, and the deadline to respond must have passed with no answer or other response.
The response deadline varies by court. In federal court, a defendant generally has 21 days after being served with the summons and complaint to file an answer.2Legal Information Institute. Federal Rules of Civil Procedure Rule 12 – Defenses and Objections A defendant who waived formal service of process gets 60 days. State courts set their own deadlines, commonly in the 20-to-30-day range.
Service matters more than any other single factor here. If the original service of the complaint was defective, any default entered afterward can be thrown out, because the constitutional right to due process depends on the defendant actually knowing they were sued. Most courts require personal delivery of the summons and complaint. When a defendant can’t be located or avoids service, courts may allow alternatives like service by mail or publication, usually only with a court order first. A proof of service, typically a signed affidavit from whoever delivered the documents, must be on file before the court will entertain a request for entry of default.
What a Valid Notice Includes
If you’ve received a notice, these are the elements it should contain. At a minimum, the document must:
- Identify the full names of all parties, the case number, and the court where the lawsuit is pending.
- State that the defendant was properly served and failed to respond within the required deadline, specifying which deadline was missed.
- Warn that the plaintiff intends to request an entry of default and ultimately a default judgment if no response is filed.
- Provide contact information for the plaintiff or their attorney.
Some jurisdictions impose additional form requirements or specific service methods for the notice itself. Local court rules control.
How Much Time You Have After Receiving It
Once a notice of intent to take default has been served, you’re in your last practical window to participate in the case. How long that window lasts depends on where the lawsuit is pending.
In federal court, the rules distinguish between defendants who have already appeared in the case and those who haven’t. A defendant who made any kind of appearance is entitled to at least 7 days’ written notice before a hearing on a default judgment motion.1Legal Information Institute. Federal Rules of Civil Procedure Rule 55 – Default; Default Judgment A defendant who never appeared is not entitled to any additional notice under the federal rules before the clerk or judge enters judgment. State courts often set their own notice periods, and some local rules are more generous than the federal minimum.
These deadlines are strict. A response filed one day late can be treated as no response at all, though courts sometimes grant extensions when a defendant can show a legitimate reason for the delay. If you’ve received a notice, the safest assumption is that any time you’ve been given is the only time you’ll get.
What Happens If You Do Nothing
Ignoring the notice is one of the most expensive mistakes a defendant can make. Once a default judgment is entered, the plaintiff can enforce it like any other court order. Wage garnishments, bank levies, and liens on real property are all available. The judgment becomes a matter of public record and can follow you for years, affecting credit, property transactions, and background checks.
You also lose the ability to challenge the plaintiff’s claims on the merits. Whatever the complaint alleged is treated as true. If it said you owed $50,000, the court can award $50,000 without the plaintiff ever having to prove it in a contested proceeding.
There is one guardrail on the money. A default judgment generally cannot award more than what the plaintiff demanded in the complaint, because the defendant was on notice of a specific exposure when served and it would be unfair to increase that number after they’ve lost the ability to contest it. For claims that aren’t a fixed, calculable sum, the judge may require an evidentiary hearing, an accounting, or documentation like contracts, invoices, or medical records before setting damages.
Protections for Servicemembers and Minors
Federal law builds in extra safeguards for defendants who may not be able to defend themselves, and these apply regardless of whether a notice of intent has been served.
Before any court enters a default judgment, the plaintiff must file an affidavit stating whether the defendant is on active military duty. This requirement comes from the Servicemembers Civil Relief Act and applies in every civil case where the defendant hasn’t appeared, including custody proceedings. If the defendant is in military service, the court must appoint an attorney to represent them before entering any judgment, and will typically postpone the case if that attorney can’t locate the servicemember. A servicemember who learns a default judgment was entered against them while on active duty can ask to have it set aside after returning.3Office of the Law Revision Counsel. 50 USC 3931 – Protection of Servicemembers Against Default Judgments
A court also cannot enter a default judgment against a minor or someone who has been declared legally incompetent unless that person is represented by a guardian, conservator, or similar fiduciary who has actually appeared in the case.1Legal Information Institute. Federal Rules of Civil Procedure Rule 55 – Default; Default Judgment The clerk’s authority to enter a routine judgment for a fixed sum doesn’t extend to these defendants.
Setting Aside a Default or Default Judgment
If a default has already been entered against you, the situation isn’t necessarily permanent, but the standard gets harder the further the process has gone.
Setting aside an entry of default, before it becomes a judgment, requires showing “good cause.”1Legal Information Institute. Federal Rules of Civil Procedure Rule 55 – Default; Default Judgment That’s a relatively forgiving standard. Courts look at whether the defendant moved quickly once they realized the problem, whether they have a viable defense, and whether the plaintiff would be unfairly prejudiced by reopening the case.
Setting aside a default judgment is considerably harder. Under the federal rules, a defendant must file a motion showing specific grounds such as excusable neglect, newly discovered evidence, or fraud by the opposing party.4Legal Information Institute. Federal Rules of Civil Procedure Rule 60 – Relief from a Judgment or Order Courts evaluating excusable neglect weigh whether the failure to respond was willful, whether setting the judgment aside would harm the plaintiff, and whether the defendant has a legitimate defense worth hearing.
Timing is its own problem. Motions based on excusable neglect, newly discovered evidence, or fraud must be filed within a reasonable time and no later than one year after the judgment was entered. Other grounds have no fixed deadline but still require filing within a reasonable period. Waiting months after learning about a default judgment makes relief far less likely. If you discover a default or default judgment has been entered against you, treat it as an emergency and talk to an attorney the same week.