How To Vacate A Default Judgment
What is a Default Judgment?
If you’ve been summoned to appear in court for a
debt collection lawsuit and fail to make the appearance, you may be at risk of having a default
judgment entered against you. With a default judgment, the court essentially
rules in the favor of the plaintiff. A default judgment is binding, even
if the defendant did not take the opportunity to plead their case. However,
before deciding to enter a default judgment, the Court would require that
the Plaintiff file an
Affidavit of Service which attests that the Defendant was served with the lawsuit.
Issues with Service Of Process - Sewer Service
In New York, a debt lawsuit can be served on the person of the defendant,
or when such attempts have failed twice, the papers can be delivered through
substitute service, also know as "nail and mail" to the defendant's
domicile. Since personal delivery is not absolutely required, this opens
the possibility of issues particularly in situations where the defendant
has moved and the plaintiff mistakenly believes that the defendant received
proper notice of the lawsuit.
Most frequently, client's that retain our law office for assistance
with default judgments claim to have never been served with the lawsuit
papers. All to often, their first notice that a judgment was entered is
when their bank account is frozen, or they receive a
notice of wage ganishment.
Vacating a Default Judgment in New York
A Defendant can seek to vacate a judgment by bringing a
Motion or an
Order To Show Cause. If your bank account is frozen, or you received a notice of wage garnishment,
Order to Show Cause can be advantageous because you can request a stay on all executions.
If granted, it would stop the wage garnishment, and prevent the creditor
from accessing the frozen funds, until the Order has been decided. On
the other hand, if immediate relief isn't necessary, bringing a
Motion To Vacate Judgment may be sufficient.
When seeking vacature of a default judgment, the defendant will likely need to:
- State a resonable excuse as to why they didn't respond to the lawsuit
in a timely manner.
- Must be able to allege a meritorious defense to the underlying action.
- Will make a showing to the court that they acted promptly upon receiving
notice (within 1-year of notice).
The Motion or Order to Show Cause need to be filed with the court and the
commensurate filing fees must be paid. The papers must be served upon
the Plaintiff's attorney, and where necessary, the Marshal's or
Sheriff's office, all in a timely manner. In the event the Plaintiff
does not appear on the required court date, the court may request to see
the Affidavit of Service attesting that you served the Plaintiff timely
and in accordance with the New York Rules of Civil Procedure.
In the event you prevail on your request for relief, the judgment will
be vacated. However, the court will decide whether to re-open the case
and require an Answer be filed, or if the case will remain closed after
the vacature. It's important to keep in mind that just because you
prove lack of service sufficient to vacate the judgment, that doesn't
mean that you have prevailed in defending the underlying case.
Strategy For Order To Show Cause Vacating Judgment
Once you understand that you might still have to fight your case, and might
still be held responsible for the debt even after successfully vacating
your judgment, you might want to explore a strategy that may save you
time and money. Just keep in mind, each case is unique, so it's important
to analyze the complexities of your matter in order to determine the best
course of action.
Fighting to vacate a judgment can help bring leverage to negotiating a
settlement on a judgment. Typically, a settlment would entail a payment
for a reduced amount as compared to the judgment balance with interest.
This payment would be made by the Defendant to the Plaintiff, and in exchange
the Plaintiff would consider the matter settled and would reliev the Defendant
of liability on the remaining balance.
Our Lawyers Help Vacate Judgments
When contesting judgments in court, our lawyers are oftentimes able to
negotiate a settlement that not only reduces the balance, but also allows for the
judgment to be vacated voluntarily by the Plaintiff - without the court necessarily deciding on the Order To Show Cause. Each
case and client is unique, so call us to learn how we can help you.
Get in touch with us today to schedule your complimentary initial
case consultation with our skilled judgment defense lawyers.
Call the Law Office of Simon Goldenberg, PLLC today!