North Carolina default judgment: the clerk enters it, and three days' notice if you appeared

North Carolina runs default on the familiar two-step model — entry of default, then judgment — but it gives the clerk more power than most states do. The clerk enters the default, and on a liquidated claim the clerk enters the judgment too, without a judge seeing the file.

Knowing which step you are at determines what you have to show to get out.

Step one: entry of default

N.C. R. Civ. P. 55(a):

Entry. – When a party against whom a judgment for affirmative relief is sought has failed to plead or is otherwise subject to default judgment as provided by these rules or by statute and that fact is made to appear by affidavit, motion of attorney for the plaintiff, or otherwise, the clerk shall enter his default.

Two things to notice.

The trigger is broader than a missed answer. "Failed to plead or is otherwise subject to default judgment as provided by these rules or by statute" reaches beyond the ordinary case.

And the showing is loose. An affidavit, a motion of the plaintiff's attorney, "or otherwise." North Carolina does not require a sworn statement the way some states do — counsel's motion suffices.

There is no notice requirement before entry of default. This step can happen without your hearing about it.

Step two: judgment by the clerk

Rule 55(b)(1):

By the Clerk. – When the plaintiff's claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and if the defendant is not an infant or incompetent person. A verified pleading may be used in lieu of an affidavit when the pleading contains information sufficient to determine or compute the sum certain.

Three conditions gate the clerk's judgment: a sum certain, a default for failure to appear, and a defendant who is not an infant or incompetent person. Miss any of them and the matter belongs to a judge.

The verified-pleading substitution is worth knowing. A plaintiff whose complaint was verified and contains the arithmetic does not need a separate affidavit.

The rule also lets the clerk carry a foreclosure through to completion where the defaulted claim is secured — "the clerk may likewise make all further orders required to consummate foreclosure."

Step two, the other way: judgment by the judge

Rule 55(b)(2)a.:

In all other cases the party entitled to a judgment by default shall apply to the judge therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a guardian ad litem or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, that party (or, if appearing by representative, the representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application.

Three days, and it depends entirely on having appeared.

That is the shortest notice period of the east-coast states — New Jersey gives none before entry but requires a formal request; Rhode Island gives ten days; the federal rule gives seven. North Carolina gives three.

The judge may also take an account, determine damages, establish the truth of an averment by evidence, or investigate any other matter, and may conduct hearings or order references to do so.

Undoing it

The two tiers have different standards, and the gap between them is the reason to move quickly.

An entry of default is set aside for good cause shown under Rule 55(d) — a forgiving standard, applied before any judgment exists.

A default judgment goes to Rule 60(b):

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect; (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) The judgment is void; (5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) Any other reason justifying relief from the operation of the judgment.

And the timing:

The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this section does not affect the finality of a judgment or suspend its operation.

Note the last sentence. Filing a Rule 60(b) motion does not stop the judgment from operating — execution can proceed while you are asking to have it set aside.

Ground (4) is the one to lead with where it fits. A judgment entered without valid service is void, and a void judgment is attacked on its own footing rather than as a matter of discretion — and without the one-year cap, since that limit reaches only grounds (1), (2) and (3).

How North Carolina compares

A short checklist

1. Work out which step has happened. An entry of default and a default judgment are different orders with different standards.
2. Appear. Three days' written notice before a judge enters judgment depends entirely on it, and there is no notice at all before entry of default.
3. If the claim is not a sum certain, the clerk should not have entered judgment — check who signed it.
4. Check the affidavit of the amount due, or the verified pleading used in its place.
5. Move before judgment if you can. Good cause under Rule 55(d) is materially easier than Rule 60(b).
6. Lead with voidness where service was defective. Ground (4) carries no one-year cap.
7. Watch the one-year limit on mistake, newly discovered evidence and fraud — and note that "reasonable time" governs even inside the year.
8. Do not assume filing stops collection. A Rule 60(b) motion does not suspend the judgment's operation.

Where these rules live

• N.C. R. Civ. P. 4 — Process.
• N.C. R. Civ. P. 6 — Time.
• N.C. R. Civ. P. 55 — Default.
• N.C. R. Civ. P. 60 — Relief from judgment or order.
• N.C. R. Civ. P. 15 — Amended and supplemental pleadings.

This page explains what the rules say. It isn't legal advice, and the good-cause standard for setting aside an entry of default is developed in case law this site doesn't cover.