What is a judgment?
A default judgment is a final decision that is made and issued by a court in a case. If the judgment is made against you, it will state how much money you owe to the plaintiff or the person who sued you. This is a type of judgment that the court will issue when the defendant fails to appear or to show up to court to defend the lawsuit.
What is a judgment creditor?
The judgment creditor is a creditor or a debt buyer who has obtained a judgment against the defendant.
What can I do to vacate the judgment?
First know that there are two reasons that will induce the court to vacate a default judgment. The person seeking to vacate the default will need to show:
- Excusable default
- Lack of personal jurisdiction
What is excusable default?
Excusable default is the most common reason for vacating a default judgment. It contains two parts:
- A reasonable excuse for missing the original court date
- A meritorious or good defense
You must, however, vacate a judgment based on the excusable default one year after the date you were served with a copy of your judgment.
What are some common examples of a reasonable excuse?
The most common example of a reasonable excuse is that you did not receive a summons that notifies and tells you to come to court. Other reasonable excuses include: that at the time you received the summons you were out of town, ill, incarcerated, unable to take time off from work, or that you could not answer the summons for another acceptable reason. You may also have a reasonable excuse if you had consulted with the attorneys who represented the plaintiff and they told you not to go to court.
In some circumstances, people do not respond to the summons because they do not understand what it entails. This not normally considered a reasonable excuse but some judges will accept it, however.
What are some common examples of a meritorious defense?
A good defense should demonstrate the reason why you do not owe the money, not a reason why you cannot pay. For example, if you would like to use the defense of identity theft, you would write: "This is not my debt. I am a victim of identity theft." Other defenses include:
- Dispute in amount of debt
- No Business relationship with plaintiff
- Plaintiff is not a licensed debt collector
- Improper service
When in doubt, honesty is the best policy. If you do not know what else to write, most people can simply state "I dispute the amount of the debt."
What is lack of personal jurisdiction?
The court can also vacate a default judgment if you were not properly served with a summons. The main advantage here is that there is no time limit for seeking to vacate a judgment on the grounds of lack of jurisdiction. Also, if you seek to vacate a judgment because of improper service, you do not need to cite a meritorious defense, or any defense for that matter.
The disadvantage, however, is that you have the burden of proving the bad service, which you must do at a special hearing called a "traverse hearing." Proving improper service can be difficult depending on the facts of your case.
What are the next steps toward vacating a default judgment?
First, find out which court issued the judgment. In a debt collection case, you will most likely need to go to the civil court in the county where you live. Next, go to the court that issued the judgment and find the civil court clerk's office. Tell the clerk that you want to file an Order to Show Cause. The clerk will give you a pre-printed form to fill out and may also help you to fill out the form.
What should I write on the Order to Show Cause form?
On the Order to Show Cause, you need to explain why the court should vacate the judgment by either establishing the excusable default or lack of jurisdiction.
Should I write anything else on my Order to Show Cause?
It depends. If you have a frozen bank account that contains exempt funds, if your wages are being garnished, or if there is some other emergency situation requiring that your judgment be vacated more quickly than usual, you should include this information on your Order to Show Cause.
What happens after I fill out the Order to Show Cause?
After you fill out the Order to Show Cause form, it goes to a judge for signature. The procedure varies by counties. If the judge signs your Order to Show Cause, you will have to serve it on the attorney for the plaintiff. The court will instruct you on how to serve the papers.
The court will also give you a date to come back to court which is called your "return date." The return date is supposed to be within eight days of your Order to Show Cause, but in some courts, you might have to wait two or three weeks for a return date.
If it is an emergency situation and you cannot wait two or three weeks to see a judge, you should advise the court of this fact at the time you submit your order to show cause.
If the judge does not sign the Order to Show Cause, then the judgment stays in place. Do not despair! Contact our New York City debt lawyers at Lebedin Kofman LLP for the counsel and assistance that you need.
What happens at the return date?
On the return date, you will go to court and wait for the court clerk to call out your name. Answer clearly. The attorney for the plaintiff may also call out your name. Then, the plaintiff's attorney might consent to your order to show cause or ask whether you want to make a settlement agreement. No matter what the plaintiff's attorney says to you, it is important that you focus on making sure that the default judgment is vacated.
If the plaintiff's attorney does not consent to vacating the judgment, you should ask to go before the judge. When you are before the judge, you must focus on the arguments you made on the Order to Show Cause form.
You should repeat and make clear:
- Your good reason for failing to appear in court
- Your defense in the case
As long as you have a reasonable excuse and a meritorious defense, the judge should grant the order to show cause and vacate the judgment against you. Remember, if you also want to argue the lack of jurisdiction because you were not served with a summons, you must ask the judge for a traverse hearing.
What if I have a frozen bank account or wage garnishment?
Once the default judgment is vacated, the plaintiff must release your bank account and cancel the wage garnishment. This information is included within the court's order that vacates the judgment.
If the judgment is vacated, does that mean the case is over?
Unfortunately, that is probably not the case. In most cases, even though the judgment is vacated, you still have to provide a defense. You will need to file an answer and attend at least one additional court date.
Contact A Debt Attorney in New York City
At Lebedin Kofman LLP, we are available to help you through each step of your case. Do not hesitate to receive the assistance you need from our debt attorneys serving New York City!