Iowa Admin. Code r. 641-33.26 - Default
(1) If a party
fails to appear or participate in a contested case proceeding after proper
service of notice, the presiding officer may, if no adjournment is granted,
enter a default decision or proceed with the hearing and render a decision in
the absence of the party.
(2) Where
appropriate and not contrary to law, any party may move for default against a
party who has failed to appear after proper service.
(3) Default decisions or decisions rendered
on the merits after a party has failed to appear or participate in a contested
case proceeding become final board action unless, within 15 days after the date
of notification or mailing of the decision, a motion to vacate is filed and
served on all parties or an appeal of a decision on the merits is timely
initiated within the time provided by subrule 33.30(2). A motion to vacate must
state all facts relied upon by the moving party which establish that good cause
existed for that party's failure to appear or participate at the contested case
proceeding. Each fact so stated must be substantiated by at least one sworn
affidavit of a person with personal knowledge of each such fact, which
affidavit(s) must be attached to the motion.
(4) The time for further appeal of a decision
for which a timely motion to vacate has been filed is stayed pending a decision
on the motion to vacate.
(5)
Properly substantiated and timely filed motions to vacate shall be granted only
for good cause shown. The burden of proof as to good cause is on the moving
party . Adverse parties shall have ten days to respond to a motion to vacate.
Adverse parties shall be allowed to conduct discovery as to the issue of good
cause and to present evidence on the issue prior to a decision on the motion,
if a request to do so is included in that party 's response.
(6) "Good cause" for purposes of this rule
shall have the same meaning as "good cause" for setting aside a default
judgment under the Iowa Rules of Civil Procedure.
(7) A decision denying a motion to vacate is
subject to further appeal within the time limit allowed for further appeal of a
decision on the merits in the contested case proceeding. A decision granting a
motion to vacate is subject to interlocutory appeal by the adverse party
pursuant to rule
641-33.29
(17A).
(8) If a motion to vacate is
granted and no interlocutory appeal has been taken, the presiding officer shall
issue another statement of charges and the contested case shall proceed
accordingly.
(9) A default decision
may provide either that the default is to be stayed pending a timely motion to
vacate or that the default decision is to take effect immediately, subject to a
request for stay under rule
641-33.33
(17A).
Notes
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