Getting a default judgment against telemarketers
- Peter Schneider
- Jun 5
- 9 min read
Updated: Jul 22
When suing a telemarketer, don't be shocked if they refuse to appear in court and defend the lawsuit after you serve them. TCPA plaintiffs sometimes aren't sure what to do in these situations and I thought posting a few examples and variations of default judgments might be useful to the community.
The federal rule of civil procedure that covers defaults and default judgments is 55.
Default vs Default Judgment
A "default" is a status - the status of not appearing in court to defend as required by the civil rules. A "default" is not a judgment, but a stepping stone on the path to a default judgment. There are consequence of being held in default. First, typically a defendant in default is limited in participating in the case except for lifting their defaulted status. They generally can't file other motions or propound discovery, and likewise, a court may not recognize any discovery propounded on the defaulted party. Another consequence is that a court can consider all well plead allegations in the complaint as admitted by the defaulted party.
Getting an entry of default
The first step to obtaining a default judgment is to move for an order of default. A motion for a default is typically going to lay out that the defendant was properly served, and the defendant has not responded in the time allowed.
(a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.
Here is an example of a motion for an order of default.
And an example declaration to accompany the motion for an order of default.
Potential wrinkles to getting a default
Sometimes defendants don't completely ignore a summons and complaint. They might respond with a letter which isn't an Answer, but isn't nothing.
In these situations a good option is to show the judge the correspondence and let them decide what to do, which is what was done here.
The court responded to the motion:
the Court construes Plaintiff’s filing as a request for entry of default. See Dkt. No. 11. Here, Plaintiff filed an affidavit showing that Defendant Anthony George was served with the complaint on February 25, 2025. Dkt. No. 9. Plaintiff also filed a second affidavit, which shows that AG Marketing was properly served through its registered agent.1 Dkt. No. 10 at 3; Fed. R. Civ. P. 4(h)(1)(A), (e)(1) (a domestic corporation may be served by following state law for serving a summons); WASH. REV. CODE § 4.28.080(9); see also id. § 23.95.450(1). Therefore, the Court GRANTS Plaintiff’s motion for entry of default and DIRECTS the Clerk to enter default against Defendants Anthony George and AG Marketing.
Which the clerk did:
This matter is before the Court on Plaintiffs’ motion for entry of default against Defendants Anthony George and AG Marketing. Having considered the motion and supporting papers, as well as the pleadings and records in this matter, and Defendants having failed to appear, answer, or otherwise respond to Plaintiffs’ complaint within the time provided by law, pursuant to Federal Rule of Civil Procedure 55(a), Defendants Anthony George and AG Marketing are found to be in default.
Moving on to the default judgment
Once you have obtained the default, the next step is to move for a default judgment. The motion can be pretty basic, here is a two page example that asks for a judgment with the amount of damages penciled in later: Order a hearing on damages as to Defendant EDM Leads, LLC upon the completion of discovery in this matter in accordance with Fed. R. Civ. P. 55(b)(2);
Do duck a gotcha - see FRCP 55(b)(2):
If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing.
There can be situations were a defendant has appeared but still defaulted, and if the judge orders an evidentiary hearing that defendant is owed notice of the hearing or a default judgment might be void.
Another potential gotcha in Washington State courts is CR 55(f)(1). If you serve a summons in Washington State courts and delay moving for a default and then a default judgment for more than one year, you owe the defendant notice of the hearing.
Notice. When more than 1 year has elapsed after service of summons with no appearance being made, the court shall not sign an order of default or enter a judgment until a notice of the time and place of the application for the order or judgment is served on the party in default, not less than 10 days prior to the entry. Proof by affidavit of the service of the notice shall be filed before entry of the judgment.
No matter what you do, the judge may order an evidentiary hearing, but if your motion for a default judgment is complete enough it might be granted without one.
Collecting on the Default Judgment
A lot of defendants don't want to come to court until after you obtain a default judgment and then come to collect. Suddenly they are all to eager to come to court and asking that the default judgment be vacated because now they want to resolve the dispute on the issues
Those defendants are limited in vacating the [federal court] judgement for the reasons given in FRCP 60(b).
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b) ; (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; [such as not being served the lawsuit] (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.
If a defendant was properly served, a lot of them will argue that they meant to come to court and defend the lawsuit but things got in the way, or maybe someone else was served the papers [commonly a spouse] and they never got them, yadda yadda yadda. One way to cut down on the ability for defendants to vacate the lawsuit is to wait for a year after the entry of the judgment to collect. FRCP 60(c)(1): A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.
So you might wait a year after obtaining the default judgment before starting collection efforts. As an aside, be careful in how you collect or you may end up like the plaintiff in telephone consumer protection act case Knox v. Millennia Tax Relief LLC, 2025 U.S. Dist. LEXIS 90530 who obtained a default judgment, then assigned it to a Landmark Collection Services Inc., who then ghosted on Knox.
If you don't wait a year after obtaining the default judgement to collect, you might suffer the fate of Mr. Hoffman in Hoffman v. Reagan Gold Grp. LLC, 2025 U.S. Dist. LEXIS 117710, 2025 LX 144384. On December 5, 2024, Mr. Hoffman filed a class action lawsuit against Reagan Gold Group LLC asserting claims under the Telephone Consumer Protection Act and Washington State telemarketing laws. Mr. Hoffman didn't get a default judgment and then immediately go about collecting, but the case shows what easily happens if a defendant comes back to court inside of a year:
In the Hoffman lawsuit, Reagan Gold didn't respond in the time allowed and Mr. Hoffman moved to put them in default. On April 26, 2025, Reagan Gold moved the court to set aside the default citing excusable neglect and meritorious defenses, which the court granted.
The court noted that it may set aside the default for good cause, and that the court must consider three factors.
(1) "whether the party seeking to set aside the default engaged in culpable conduct that led to the default; (2) whether it had no meritorious defense; or (3) whether reopening the default judgment would prejudice the other party." United States v. Aguilar, 782 F.3d 1101, 1105 (9th Cir. 2015)
You might think that consciously choosing not to answer is culpable, but hilariously, courts don't think so. So long as Reagan Gold has a story that doesn't involve admitting to a devious, deliberate, willful, or bad faith failure to respond, they are going to pass the first factor.
The court begins with the first factor: "whether the party seeking to set aside the default engaged in culpable conduct that led to the default[.]" A "defendant's conduct is culpable if he has received actual or constructive notice of the filing of the action and intentionally failed to answer." In this context, "the term 'intentionally' means that a movant cannot be treated as culpable simply for having made a conscious choice not to answer[.]" [how is that for turning the plain meaning of words on their head.] Rather, "the movant must have acted with bad faith, such as an intention to take advantage of the opposing party, interfere with judicial [decision making], or otherwise manipulate the legal process." The Ninth Circuit has "typically held that a defendant's conduct was culpable for purposes of the [good cause] factors where there is no explanation of the default inconsistent with a devious, deliberate, willful, or bad faith failure to respond." [so long as the defendant can come up with a story that doesn't admit to a devious, deliberate, willful, or bad faith failure to respond, they are going to pass the first factor]
Reagan Gold came up with a story that they didn't appear in court because they were exploring a settlement. Not sure what one has to do with the other, but um ok.
The second factor is almost as easy for a defendant to jump over as the first. A Defendant "must present specific facts that would constitute a defense." This burden is "not extraordinarily heavy" and requires only that "Defendant allege sufficient facts, that if true, would constitute a defense."
Note there is no evidence standard here, the defendant need only have a story of a defense. And Reagan Gold has the same story all telemarketers tell:
Defendant argues that it has "adhered to the TCPA regulations by refraining from sending solicitation messages" and instead "provided courtesy messages to the general public, which contain informative, yet publicly available, communications related to [G]old." Defendant maintains that "none of the messages sent to any member of the Class, including Mr. Hoffman, requested or encouraged the recipient to purchase gold from Reagan[.]" Rather, the messages contained "information to individuals, enabling them to make better investment choices."
That was all the court needed to hear: Defendants have asserted facts that challenge Plaintiffs' prima facie claim for a TCPA violation and raise affirmative defenses that if true, establish "some possibility that the outcome of the suit after a full trial will be contrary to the result achieved by the default."
The third factor is often the easiest for a defendant. The Court considers "whether reopening the default judgment would prejudice the other party."
The "delay must result in tangible harm such as loss of evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion." Setting aside the entry of default will not prejudice Plaintiff because the delay will not hinder Plaintiff's ability to pursue his claims or impose costs that are greater than those inherent in litigating this case. Furthermore, the delay was not long. Defendant filed its motion to set aside default less than one month after Plaintiff responded to the Court's order to show cause why the case should not be dismissed for failure to prosecute . . . There has been minimal activity in this case apart from moving for default, and Plaintiff's filings do not indicate he would be prejudiced if required to litigate his claims on the merits . . . being forced to litigate on the merits" is not prejudicial)
Many judges don't like telemarketing cases, don't like pro-se parties, and don't like pro se parties with telemarketing cases. If any of the above applies to you, consider even more waiting the 12 months to collect.
Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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