The Alabama Supreme Court has amended Ala. R. Civ. P. 55(b)(2), to provide that a hearing is required on an application or motion for default judgment if the party against whom judgment by default is sought has appeared in the action. The amendment requires written notice of both the application or motion and the hearing thereon at least three (3) days prior to the hearing (except on the date that the case is set for trial – in that case, 3 days’ notice is not required). This Rule change resolves the ambiguity regarding whether Rule 55 requires a hearing that the Alabama Supreme Court found in Ex parte Living by Faith Christian Church, [Ms. 1190872, Nov. 5, 2021] __ So. 3d __ (Ala. 2021). For what constitutes an “appearance” in the context of a default, see Progress Industries, Inc. v. Wilson, 52 So. 3d 500 (2010), which states that notice must be given when a defaulting party has appeared and has indicated a clear purpose to defend the action, even where the pleading doing so is defective. The court there found that an improper attempt by a non-attorney to file a pleading can constitute an “appearance” for purposes of Rule 55(b)(2).
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