Collection Defense: Tips & Hacks #4 (Vacate Judgment, Debt buyers, Court Rules, Asset Recovery Solutions, LLC)

Inspired from our business facebook page, we delightfully offer some points and rules to use in your collection defense. The New York City Civil Court system has been dubbed, "the credit card courts" because of the proliferation of debt-buyer lawsuits. But a little effort defending these cases goes a long way.

If you're facing judgment-enforcement by a debt buyer, you need to ensure that you avoid the entry of a judgment. Even after the entry of a judgment, some good, pointed arguments goes a long way.

  • Here's a bulleted list of points to cover in your motion to vacate your default judgment:
    • ​​Be as factually descriptive in your affidavits (assert all plausible excuses, defenses, and hardships).
    • Although some parts of the law do not require a "meritorious defense," most judges require it. Therefore, raise all defenses (not owed, already paid, wrong amount, misapplied payments, etc.).

    • Refute a denial of service with facts. Do not be conclusory. Were you not living there? Does the person who was given the papers not exist? Was nobody home?

    • Question the thoroughness and authenticity of the plaintiff's documents.

    • Challenge the plaintiff on its "sum certain," which means the amount of damages (money) that it claims you owe. The sum needed to be "certain" and clear before a clerk could enter a judgment against you. Is the amount inaccurate? Is there a misapplied payment?

    • When a judge rules on your motion to vacate your default judgment, the issue of improper service (lack of jurisdiction) is usually decided as a "threshold issue" before moving on the issue of excusable neglect.[1] But again, be highly specific when rebutting the plaintiff's affidavit of service.

  • Even original-creditor banks, like Discover Bank, must lay a proper foundation before admitting their statements into evidence.[2] Creditor lawyers love the self-authentication theory but must judges don't. For content about laying a foundation, see CACH, LLC, and 11 Questions to Raise in a Debt-Buyer Lawsuit.
  • Since debt buyers may not use affidavits—in lieu of a live witness—at trial, the odds of them producing a live witness is low. Therefore, defeating a debt buyer's summary judgment motion is a crucial part of your case.
  • We've been seeing problematic letters sent by Asset Recovery Solutions, LLC. We've taken action against this company under the Fair Debt Collection Practices Act for using deceptive letters that omit material case-information needed to inform consumers of the character of their debts (default judgments).
  • There is no time limit to vacate a default judgment by stipulation (agreement). Another reason to compel your collector to vacate the judgment as part of your settlement.
  • When it comes to debt buyer securing default judgments, read this critically important blog, New York Court Rules will undoubtedly impact Debt-Litigation Market, Says Jesse Langel, Esq.
  • Always investigate which entity is taking action against you. Often times, the entity freezing your bank account or garnishing your wages is not the entity in the caption of the case. And often times, either or both entities are defunct, or unable to sue in the first place. Foreign debt buyers suing in New York courts need to be registered with the Department of State.[3] Such lawsuit are not "isolated incidents" exempting them from registration.

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[1]U.S. Bank Nat. Ass'n v. Losner, 44 N.Y.S.3d 467 (2d Dep't 2016).

[2] Discover Bank v. Lezama, 23998/13 (Civ. Ct. Queens).

[3] Centurion Capital Corp. v. Guarino, 951 N.Y.S.2d 85 (NY Civ. Ct. April 30, 2012).

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