Opposition against a default judgment is a civil procedure before the same judge of the District Court who rendered the default judgment, in which the procedure distinguishes itself to the appeal procedure, which is dealt with by the Court of Appeal. So it is a second chance for the defendant to file a defense against the original claim and to obtain a judgment on the merits from the District Court. In fact it is a continuation from the procedure as originally initiated by the claimant. With a successful opposition the default judgment is set aside and quashed.
Apart from the option to ask the court to set aside the default judgment, there is often a possibility to settle the debt with the claimant for an amount less than what the default judgment is for. Usually this is not really a possibility in complex cases.
The defendant in civil proceedings is summoned in the summons to appear on the day announced in the summons. If the defendant does not appear in the proceedings, the court will not hear the defendant and the court will grants the claim, unless the claim appears to be unlawful or unfounded (Article 139 DCCP). Subsequently, the claimant will instruct the bailiff to have the default judgment served on the defendant and to make an order for payment. The defendant who is confronted with this can, if he is on time, object to the judgment and thus still provoke a substantive judgment from the judge.
All the defenses can be used in the opposition procedure, which could also have been done if the defendant did appear on time. It is therefore a continuation of the procedure and not an appeal.
The opposition period in the ordinary summons procedure is four weeks. This also applies to a default judgment rendered in summary proceedings. The period is extended to eight weeks in the event that the
original defendant does not have a known place of residence in the Netherlands, but his place of residence is known outside the Netherlands.
This short term starts from the moment the judgment is served in person, or from an act of familiarity with the judgment. Much has to be done in that short term.
In cases in which the defendant is unable to litigate in person, the opposition must be filed by a lawyer, who will then act as a lawyer for the claimant in opposition.
In the summons, the original defendant will demand that the default judgment be set aside, and ask the court to reject the claims of the original claimant and order the original claimant to pay the costs of the proceedings.
A burdensome requirement is that all defenses must be included in the summons. Also all available written evidence should be attached. This means that a very thorough document will have to be prepared in a very short time, often in less than four weeks. It is therefore very important to call in a lawyer immediately if you are confronted with a default judgment against you, whether this is due to sloppiness or the fact that you have never received the original summons.
Are you confronted with a default judgment and do you still want to put up a defense? Then we can assist you and prepare a defense together with you in time. If you are considering using our services, please contact us as soon as possible and we will be able to get up to speed on your behalf. We are there to assist you. Not for nothing is our motto: "Your problem, our concern."
Hein Kernkamp will gladly help you further.
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