In re Lary (04-54138, Adv. No. 04-05181)

The defendant failed to timely serve an answer to a cross-claim. The court signed a judgment by default that was prepared by the trustee's counsel. The court set aside the judgment by default because the defendant did not have the three-days notice required by Rule 55(b)(2) for parties who have made an appearance in the action. The court also held that the relief granted in the judgment by default was different in kind and exceeded the relief sought in the cross-claim.

Wednesday, August 3, 2005