Often times, consumers have to unwind their case after they've defaulted (did not appear in court). Bad service of initial papers often leads to lack of awareness, which then leads to a default judgment. The
garnishment proceedings and
bank restraints come next.
If you seek to overturn a judgment based on lack of personal jurisdiction for bad service, Pinpoint Technologies v. Santos reminds us that you need to make specific, factual rebuttals against the affidavit of service.
In Pinpoint Technologies, a consumer's request to overturn a judgment was denied for her failure to make those factual rebuttals. Like many of our clients, she was unable to do so because the court file—that includes the affidavit of service—was so old that it was stored at another facility, which can take months to retrieve. When facing garnishments and bank restraints, consumers lack the luxury to wait for those court files.
But, held the court in Pinpoint Technologies, the consumer was granted a right to "renew" her prior motion because she later obtained the affidavit of service and informed the court that she did not reside at the address where she was allegedly served. The court found this argument credible and set the matter down for a "traverse hearing" (to determine this issue of service).
While it's always better to make your motion to vacate while having the affidavit of service, we are often forced to make motions without them. We'd be delighted to explore your case with you to discuss your strategy to protect you against a judgment.
Pinpoint Technologies was represented by
Mel S. Harris & Associates, LLC.
Pinpoint Technologies v. Santos 49791/06, Civil Court, Bronx County.