Thursday, April 18, 2013

Lessons learned: How Not To Get a Default

I and others have repeatedly written about how dangerous it is to let a default judgment get taken against you and how easy it is to avoid them. We can all learn an awful lot from the things people do even without the assistance of a lawyer. So I'm calling this article "Lessons Learned: How Not To Get A Default." Hopefully someone will learn something useful from those that have gone before them.

Let me discuss a couple of examples.

Alexander James Butler

Mr. Butler received a letter from his ISP (Comcast) informing him that Voltage Pictures was accusing him of illegally downloading "Maximum Conviction," and that unless he filed a motion to quash, his ISP would give up his personal information. Mr. Butler apparently did not download the movie, so he wanted the subpoena quashed to protect his personal information. So what did Mr. Butler do? He mailed a letter to the Court asking that the subpoena be quashed. Here's a copy of the letter.

What Mr. Butler Did Right

Kudos to Mr. Butler for taking the initiative to respond directly to the allegations that he did something wrong. If Mr. Butler didn't do it, then he shouldn't have anything to worry about. When most people receive these letters, they do nothing because they are paralyzed with fear that they will get hit with a $150,000 default judgment. They just bury their heads in the sand and hope this will go away by itself. Well it won't. It will only get worse unless you address it head on.

The lesson here? If you didn't do it, don't be afraid to say so. Don't hide in fear that something bad might happen to you and ignore the problem until something bad does in fact happen to you.

What Mr. Butler Did Wrong

What Mr. Butler did wrong is that he undermined the relief he was asking for. In other words, Mr. Butler was trying to get the Court to prevent his personal information from being disclosed to the world. The problem is, he included all the information he wanted to keep secret in his letter.

The lesson here? If you don't want anyone to know who you are, don't mail the Court a letter with all the information you want kept secret. Everything you mail to the Court gets filed as a public document; anything you say will be disclosed to the world. This is the so-called rule against ex parte communication with the Court. One side is not allowed to tell the Court anything that the other side doesn't hear. No secret chats with the judge. It's just a rule. I kind of like that rule.

G.R. Valleau


Ms. Valleau received a letter from her ISP (CenturyLink) informing her that Voltage Pictures was accusing her of illegally downloading "Maximum Conviction," and that unless she filed a motion to quash, her ISP would give up her personal information. Apparently Ms. Valleau did not download the movie, but her son did. So what did Ms. Valleau do? She mailed a letter to the Court denying that she downloaded the movie, admitting that her son did, and offered to pay $13 (the cost of a copy of the movie). Here's a copy of her letter.

What Ms. Valleau Did Right

She mailed a letter to the Court denying that she did what she is accused of. She even offered to pay the fair market value of the movie. That's a stand-up decent offer in my book. And for her effort, she has avoided even the possibility of a default being entered against her.  Good for her.

What Ms. Valleau Did Wrong

Well, there's no other way to really say it: She threw her son under the bus. Seriously? Where's that maternal instinct?

I'm kidding.

Not really.

Although Ms. Valleau has effectively foreclosed the possibility of a default judgment against her, she has now admitted that her son did it. That's a pretty difficult thing to overcome. What do you hear in every cop show you've ever watched on TV?
Anything you say can and will be used against you.

You better believe it!

Now that Ms. Valleau has admitted to everyone, including the Court, that her son did exactly what he is accused of (and even tried to hide it with a "blocker") what is her son going to do? What is his defense now?

I'm not saying anyone should lie. In fact, I'm saying that you should not lie. But still, don't volunteer damaging information for no reason. If you didn't do it, say you didn't do it. But if you know who did, then at least wait until they ask you.

Bottom Line? Don't Get A Default!

Neither one of these Does will now get a default. Why? Because both of them have simply informed the Court that they didn't do what they are accused of doing. Neither of them used a lawyer, although both of them would have benefited from one. But the bottom line is, it's too easy to avoid a default judgment.

You can really do it as easily as scribbling out a note that says "I didn't do this" and mailing it to the Court. If you ever doubted me, just look up. There are two examples of people who did exactly that.

So if you made it to here in this article, now you don't have any excuse for getting a default in your case if it happens.

That said, please also learn from the mistakes made by those who have gone before you.