ENTRY OF DEFAULT
Applicable Law and Rules
Fed. R. Bankr. P. 7012(a) provides that the defendant in an adversary proceeding must
serve an answer within 30 days of the issuance of the summons by the court, unless the
court prescribes a different time. If the United States or an officer or agency of the
United States is the defendant, an answer must be served within 35 days of the issuance
of the summons. (Fed. R. Bankr. P. 9006 provides that if the last day is a Saturday,
Sunday or legal holiday, the deadline is extended to the next business day following the
Saturday, Sunday, or legal holiday.)
Rule 7012(b) incorporates by reference Fed. R. Civ. P. 12(b)-(h). These provisions
permit the defendant to serve several types of motions, including a motion to dismiss the
complaint, a motion for a more definite statement, and a motion to strike, in lieu of
serving an answer.
Although Rule 7012(a) requires that the answer or motion be served, Fed. R. Civ. P. 5(d),
which is incorporated by reference by Fed. R. Bankr. P. 7005, requires that all papers
which are to be served also "shall be filed with the court within a reasonable time after
service ." (emphasis added)
If the defendant serves neither an answer nor one of the motions described in Rule 12(b) -
(h) within the time fixed by Rule 7012(a), the defendant is in default.
Fed. R. Bankr. P. 7055 incorporates by reference Fed. R. Civ. P. 55. This rule provides
that when the defendant is in default, the plaintiff may seek to have the clerk enter the
default on the court docket. This entry of default is accomplished by the execution of
form B 260.
The Soldiers' and Sailors' Civil Relief Act requires that, before entering a default
judgment, the plaintiff must file an affidavit stating whether or not the defendant is in the
military service. If the defendant is in the military, or may be, the defendant is afforded
certain protections. 50 U.S.C. App. § 520.
The court may set aside an entry of default for good cause shown. Fed. R. Civ. P. 55(