Vacating a Default Judgment

What is a default judgment?

A default judgment is an official court decision in favor of one side when the other side does not answer or go to court on the court date.

In a consumer debt case, this usually happens when the defendant debtor missed a court date or never filed an Answer with the court in response to receiving legal papers informing them of a lawsuit against them (a summons and complaint).

If there is a default judgment against you, there are a number of ways you may find out:

• you received a copy of the judgment
• the other side that sued you (the plaintiff) contacted you directly and asked for payment
• a default judgment appeared on your credit report
• part or all of your paycheck was held back (garnished) by your employer and sent to the creditor or person you owe money to
• your bank account was frozen, or
• there was a lien (a claim) placed on your property

 

Reasons the Court Can Vacate a Default Judgment

You can ask the court to “vacate” (cancel) the default judgement by filing the necessary paperwork with the court (explained below in the “How to ask the court to vacate a default judgment” section). If your request to vacate the judgment is granted, the court will re-open the case (start the case over) and provide you with a new hearing date. If the case is re-opened, the other side can no longer use the default judgment against you and you will be given a chance to defend yourself on the new hearing date and the judge will make a new decision after hearing your defense.

The two most common reasons the court will vacate a default judgment are for 1) excusable default, and 2) lack of personal jurisdiction (bad service).

Excusable Default is the most common reason that a court will vacate a default judgment. You must show two things:

• a good reason why you missed your court date or did not answer (reasonable excuse, see examples listed below); and
• a good reason why the plaintiff should not win the case (good defense, see examples listed below).

If you received (were served) a copy of the judgment, you have up to one year from the date of the judgment to ask the court to vacate a judgment based on excusable default. If you never received (were served) a copy of the judgment, this one-year time limit does not apply to you.

Common examples of good reasons why you missed your court date or did not answer (reasonable excuse) include the following:

• you never received the Summons
• you were out of town
• you were ill
• you were incarcerated
• you were unable to get off of work
• you were told by someone at the courthouse or the lawyer for the other side that you did not have to go to court
• the debt arises out of an abusive situation and you were afraid to go to court
• or some other good reason why you could not answer the Summons or appear in court

Common examples of good reasons why the plaintiff should not win the case (good defense) depends on the type of case and the facts of the case. For example, in a consumer debt case, good defenses include the following:

• statute of limitations
• identity theft
• mistaken identity
• full or partial payment
• dispute the amount of the debt
• authorized user
• bankruptcy
• or no business relationship with the plaintiff

See Common Defenses to a Consumer Debt Case for many more common defenses and a detailed explanation of each defense to determine if they apply to your situation. For a foreclosure case, see Common Defenses to a Foreclosure Case And for a landlord-tenant case, see Common Defenses to a Landlord-Tenant Case

Keep in mind that a proper defense tells the court why you do not owe the money. This is different from telling the court why you cannot pay the debt right now.

Lack of Personal Jurisdiction (bad service)
Legal papers informing you about a lawsuit against you (the summons and complaint), must be given (served) to you the right way. This is called service. If, at the beginning of the lawsuit, you were not properly given (served) with a summons and complaint, the court can vacate a default judgment made by the court against you. This “bad” or “improper” service” defense is also called “lack of personal jurisdiction” because if you were not properly served, then by law, the court does not have the power (jurisdiction) over you and cannot make a judgment against you. If you request the court to vacate a default judgment based on bad service, you will have to prove that the service was bad at a special hearing called a “Traverse Hearing.” See How to Prepare for a Traverse Hearing.

If there is bad service, unlike “excusable default” (discussed above), there is no time limit for asking the court to vacate a default judgment. If you are asking the court to vacate the judgment because of bad service you do not need to give the court any other reason.

To find out if there was bad service, you can request the Affidavit of Service from the court clerk to see what it says about how the papers were given to you.

To find out if you were not given the papers the right way, see Common Examples of Bad Service.

 

How to Ask the Court to Vacate a Default Judgment

If you want to vacate a default judgment in a consumer debt case or a landlord-tenant case, you can make the court papers you need by using the free DIY (Do-It-Yourself) Form programs. These programs walk you step-by-step through the paperwork you need, give you helpful definitions, explain common defenses and give you legal information. When you finish the program you can get the court forms you need and instructions of what to do next. DIY Forms for: consumer debt, tenants outside NYC, NYC tenants.

If you can’t use the DIY Form programs, you can ask the Court Clerk for an Order to Show Cause. Most will have this form for you. You can also visit a Help Center for assistance with this form. (Read How to Ask the Court for Something to learn more about Orders to Show Cause.)

Go to the Civil Court Clerk’s office in the Court that issued the default judgment and request a complete copy of your court file including the affidavit of service. This will help you to know whether you should ask the court to vacate the default judgment based on excusable default or lack of personal jurisdiction (bad service).

You can tell the clerk that you want to file an order to show cause (“OSC”). On the OSC form you can tell the court why they should vacate this judgment based on either excusable default, lack of personal jurisdiction, or both.

OSC based on excusable default
The OSC should include 1) a reasonable excuse and 2) a good defense.

OSC based on lack of personal jurisdiction (bad service)
The OSC should include a 1) request to remove the judgment against you based on bad service and 2) a request for a Traverse Hearing. As discussed above, if you ask the court to vacate a default judgment based on bad service, you will have to prove that the service was bad at a “Traverse Hearing.” To do this, you must have a copy of the affidavit of service. See How to Prepare for a Traverse Hearing.

Note: If your defense of lack of personal jurisdiction (bad service) is successful and you win at the Traverse Hearing, the court may dismiss the case “without prejudice”. This means that the other side (plaintiff) can sue you on this case again and you will have to come back to court to defend yourself.

OSC based on lack of personal jurisdiction and excusable default
You can use both of these reasons to ask that the court vacate a judgment. The OSC should include all of the information required for each of these reasons.

Other information to include in the OSC
If there is any reason why you need your judgment vacated quickly, it is important to tell the court in your OSC. These reasons might include that your wages are being garnished, your bank accounts are frozen (especially if your bank account contains exempt funds—money that can’t be taken by a creditor, such as public benefits), you are going to be leaving the state for a while in the near future, or any other reason why you need the judgment vacated quickly.

Once you have completed the OSC, either you or the clerk will take it to a judge for approval and the judge’s signature. A copy of the OSC will be returned to you with the judge’s signature and a new hearing date, called the “return date”. The return date is the day that you are required to return to court to argue the statements and defenses contained in your OSC. Usually, the return date is within eight days to three weeks after the date that the OSC is signed by the judge.

You are required to give (serve) the signed OSC on the lawyer for the other side (plaintiff). The clerk will provide you with instructions on how to serve the OSC on the other side’s lawyer. It is important that you get proof of service because you must file the proof that you gave (served) the papers to the other side’s lawyer

The Return Date

On this date, you will be given a chance to “argue” (explain) the statements and facts contained in your OSC including why the judge should vacate the default judgment (either improper service or excusable default) and any defense you may have.

It is important that you show up in court on time. The court clerk will call out the names of all cases and if you are not there to say you are present for your case, the court may assume that you are a no-show and fail to hear your case at all that day.

Sometimes, the attorney for the other side (plaintiff) may try to settle with you in the hallway outside of the court room. You don’t have to discuss the case with the plaintiff’s attorneys on your own.

You can wait inside of the court room for your case to be called and speak with the court attorney or the judge about your case.