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October 5, 2012

Vacating A Default Judgment (Order to Show Cause)

This guide provides general information for New Yorkers who are facing debt collection lawsuits in the New York City civil courts. It does not apply to courts outside the state of New York. It is not a substitute for obtaining legal advice in your individual case.

What is a judgment?

A judgment is the court's written, final decision in the case. If the judgment is against you, it will state how much money you owe to the plaintiff.

What is a judgment creditor?

A "judgment creditor" is a creditor or debt buyer that has obtained a judgment against a defendant.

What is a default judgment?

When a defendant fails to appear in court ("defaults") the court will issue a judgment against the defendant. A judgment issued under those circumstances is commonly known as a "default judgment." The court usually awards the plaintiff the amount demanded in the complaint, plus interest and court costs. The court usually does not award attorneys' fees on a default judgment, but it may do so.

Can I re-open a default judgment?

Yes. Under certain circumstances, it is possible to vacate (re-open) a default judgment. The court has a special procedure for determining whether to vacate a default judgment. The procedure is relatively simple, and most pro se defendants can navigate it successfully.

What are the criteria for vacating a default judgment?

There are two main reasons that a court will vacate a default judgment: (1) excuseable default and (2) lack of personal jurisdiction. These reasons are explained below.

Excuseable Default

Excuseable default is the most common reason for vacating a default judgment. It has two parts: (1) a reasonable excuse for missing the original court date; and (2) a meritorious defense (a good defense). There is a time limit for moving to vacate a judgment because of excuseable default -- one year from the date you were served with a copy of the judgment. (If you were never served with a copy of the judgment, your one-year clock has not started.)

Common examples of a reasonable excuse: The most common example of a reasonable excuse is that you did not receive a summons telling you to come to court. Other reasonable excuses are 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 some other good reason. You would also have a reasonable excuse if, in response to the summons, you telephoned the attorneys for the plaintiff and they told you not to bother going to court.

Sometimes people do not respond to the summons because they do not understand what it is. This is not normally considered to be a reasonable excuse; however, some judges will accept it.

Common examples of a meritorious defense: A defense is a reason why you don't owe the money, not a reason why you can't 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." For a list of possible defenses, see Common Defenses to Debt Collection Lawsuits. If you don't know what else to write, most people can honestly state: "I dispute the amount of the debt." Disputing the amount of the debt, combined with improper service, is a sufficient (and very common) reason for the court to grant an order to show cause.

Lack of Personal Jurisdiction (improper service)

The court can also vacate a default judgment if you were not properly served with a summons. Look here for an explanation of New York's rules of service, including some common examples of improper service. There are advantages and disadvantages to trying to vacate a judgment on the grounds of improper service. The main advantage 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). The disadvantage of seeking to vacate a judgment on the grounds of improper service 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.

How do I vacate 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. There, 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. You can look at a copy of the form here. The clerk can also help you to fill out the Order to Show Cause form.

The NYS Office of Court Administration has produced an interactive online program that can also assist you in completing the Order to Show Cause form. You may access the online program here (look for Affidavit to Vacate a Default Judgment in a Consumer Debt Case.)

www.nedap.org


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