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Vacating a default judgment

March 7, 2021 Bankruptcy
Vacating a default judgment

Default judgments are taken against people every day. The most common manner in which they’re taken is when a person is sued, and they either fail to file appropriate responsive papers on time or otherwise fail to appear in court. Sometimes they’re properly served with a summons and complaint, and at other times they’re not.

Sewer service
The law mandates that you be given notice reasonably calculated to apprise you of the pendency of an action against you. That’s that’s called notice. In nearly all cases, New York requires that you be properly served with a summons and complaint. The summons tells you when you’re to be in court, and the complaint details the allegations against you. Quite often though, people aren’t served with anything, and they later learn that a judgment has been taken against them. A private process server signs an affidavit of service saying they were served, and that’s it. They’re not there when the court date comes up, the judge sees the executed affidavit of service, and judgment is entered. That’s called sewer service. The process server never served anybody, and instead, he threw the papers in the sewer and then signed the affidavit saying they were served.

Notice of default judgment
After a default judgment is entered against them through sewer service, many people learn about it the hard way. A wage garnishment might be ordered. A bank account might get frozen. You might even be held in contempt of court on a case that you never even knew about. These are ways that many people first learn about a judgment being entered against them. Upon learning of a judgment, don’t sleep on your rights. Act on it right away and call our offices.

Vacating the default judgment
Judges routinely enter default judgments, and in the interests of justice, fairness and allowing you to have your day in court, they routinely vacate or reverse default judgments too. Some judgments might be more difficult to vacate than others though. Some other judgments might be impossible to vacate, depending on how and when they were entered. Your attorney will prepare what is known as an order to show cause along with an affidavit to be executed by you stating you have legal defenses to both the default and the case against you. A court date is set for hearing on the matter, and appropriate documents are properly served on the attorney who took the judgment against you. It’s recommended that this time you appear in court with your attorney for the hearing, and in all likelihood, the judgment against you will be vacated. You’ll want to get certified copies of the order vacating the judgment to provide your employer or bank with in case your wages were garnished or your bank account was frozen.

After judgment is vacated
If and when the judgment against you is vacated, that doesn’t mean that the case is over and you walk away. The attorney for the alleged creditor will probably still pursue you for the amount they claim is owed. Assuming the debt or part of it is valid, you’ll be in a much better negotiating position after the judgment is vacated. Most collection attorneys and their clients are amenable to entering an order for an installment payment plan or even compromising the debt in return for an installment payment plan. Of course, if you believe that no sums are due, you’ll have every right to a trial after vacating the judgment. The danger of that though is that another new judgment might be entered against you in the same case, but this time, you won’t be able to vacate the judgment. The attorney for the creditor might not now want to compromise. He or she might not agree to an installment payment plan either.

Retaining us as your attorneys for the job is part of the process in asking a court to vacate a default judgment that was entered against you. We’ll also give you the best possible chance of a settlement on the debt or a successful trial on the amount you were sued for. If a default judgment has been entered against you, call us as soon as you learn about it. There’s a good chance that we can get it vacated for you.

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