Legal Basics: Noting a Defendant in Default
When I serve a 'originating process' "NOTICE OF ACTION" on a Defendant in New Brunswick and they Defendant(s) do not respond: with a cover letter marked "Attention to Court Clerk" further the Defendant(s) must be including with the Court Clerks cover letter by filing with the Court Client Services documents called Statement of Defence or a Notice of Intent to Defend subsequently thereafter the Defendants having obtained in return from Court Client Services proof of filing as indicated by having the subject Statement of Defence and or a Notice of Intent to Defend Court File date Stamped of same;
which must then be Court Document Process Served according to Rules of Court as required, within 20 days, upon the Plaintiff or consequentially, as Plaintiff, I may in writing to the Court Clerk's Office, further by providing therefore confirming my initial Court Document Process Service with a AFFIDAVIT OF SERVICE (Proof of Service) on a named Defendant as found listed within 'subject originating process' "NOTICE OF ACTION" This for the reasons as listed will be sufficient grounds to have the Defendants Noted In Default by simply requesting in writing of the Court Clerk.
which must then be Court Document Process Served according to Rules of Court as required, within 20 days, upon the Plaintiff or consequentially, as Plaintiff, I may in writing to the Court Clerk's Office, further by providing therefore confirming my initial Court Document Process Service with a AFFIDAVIT OF SERVICE (Proof of Service) on a named Defendant as found listed within 'subject originating process' "NOTICE OF ACTION" This for the reasons as listed will be sufficient grounds to have the Defendants Noted In Default by simply requesting in writing of the Court Clerk.
I make my written request in the form of a letter to the Clerk, you can find a guide on how to write a letter to the Clerk of the Court here within below:
Please Note Rule 20.01 of the Rules of Court:
20.01 Time for Filing and Serving Statement of Defence
Subject to Rule 20.02, a Statement of Defence (Form 27A) shall be filed and served
(a) within 20 days after service of the Statement of Claim where the defendant is served in New Brunswick,
Reference: http://www.gnb.ca/0062/regs/Rule/RULE20.pdf
Rule 21 of the Rules of Court, address noting a party in default, the subject Rules regarding noting a defendant in default are as follows:
21.01 Noting Default
(1) Where a defendant fails to file and serve his Statement of Defence and the time for doing so has expired, the plaintiff may, upon filing proof of service of the Statement of Claim, require the clerk to note the default.
And
(4) A request to note a defendant in default shall be made in writing and signed by the party or his solicitor.
The consequences of noting a Defendant is default are as follows:
21.02 Consequences of Noting Default
(1) A defendant who has been noted in default
(a) shall be deemed to admit the truth of all allegations of fact made in the Statement of Claim, and
(b) shall not file and serve a Statement of Defence or take another step in the proceeding, without leave of the court or the consent of the plaintiff, except a motion to set aside the noting of his default or to set aside a judgment obtained against him by reason of his default.
(2) Notwithstanding any other rule, any step in the proceeding may be taken without the consent of a defendant who has been noted in default, and, except as provided in Rules 27.10, 28.03, 29.03 and 30.13 or unless ordered otherwise, he shall not be entitled to notice of any step in the proceeding and need not be served with any other document.
Reference: http://www.gnb.ca/0062/regs/Rule/RULE21.pdf
This is an example of a Letter I drafted then forwarded to the Clerk of the Court for the purposes of "Noting Default":
Copy of Letter Noting Police in Default
