New York City Debt Collection Defense Attorneys

Vacating a Default Judgment in New York: Some Fine Points

Receive a wage garnishment? Bank account frozen? Bothered by a judgment?

To vacate a default judgement, you'd use Sections 5015 and 317 of the New York Civil Practice Law and Rules (CPLR). I strongly encourage you to read both, which are cut-and-pasted below in full.

7 Points to Cover in Your Motion to Vacate a Default Judgment

  1. Although both laws may not explicitly require a showing of a "meritorious defense," always raise as many defenses as possible to the underlying case. For example, did you pay all or part of the debt? Did you dispute the charges? Does a spouse owe it? Is it too old? We you paying a settlement? Did you not receive any notices whatsoever?
  2. Requiring a meritorious defense under both statutes are considered a "gloss added to the statutes by the courts."[1]
  3. Always provide a list of excuses and hardships for not defending your case. The more excuses, the better. You need to obtain leniency based on your excuses hardships. See this blog post for a list of possible excuses.
  4. Time limits:
    1. Under 317, you must move to vacate the judgment within one year of obtaining "knowledge of the entry of the judgment." Be specific as to why you did not receive "knowledge" of the judgement until later (i.e. did you move, were you traveling, etc.)?
    2. Under 5015, a similar one-year deadline runs from the time the plaintiff serves on you a copy of the judgment with "written notice of its entry." This is harder to disprove if the plaintiff produces an affidavit of service showing such a mailing to your correct address. Produce all reasons you may have not received mail.
    3. Courts has discretionary authority to extend these one-year deadlines.
  5. It helps to attack the sufficiency of the plaintiff's papers in your motion to vacate. Always try to obtain the court file and challenge all weaknesses in the file. Does the plaintiff's witness' affidavit suspiciously vague or untrustworthy? If the case was brought after October 1, 2014, does the plaintiff have all the required affidavits discussed in this blog post, "New York Court Rules will Undoubtedly Impact Debt-Litigation Market."
  6. Does the plaintiff's papers accurately reflect a "sum certain" as discussed in this blog, "Smart Way to Attack your Creditor's Default Judgment: The Sum Certain Element." In other words, does the creditor's evidence have holes that create ambiguity or uncertainty?
  7. Could you point to some kind of fraud (perjured affidavit, maybe) serving the basis to vacate under CPLR § 5015(a)(3)? We often take this position. The lesson here is that good investigation and good arguments go a long way when challenging creditor's —especially debt buyers'—default judgments.

Below is the full text of the law discussed above:

CPLR § 5015. Relief from judgment or order

(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

  1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or
  2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or
  3. fraud, misrepresentation, or other misconduct of an adverse party; or
  4. lack of jurisdiction to render the judgment or order; or
  5. reversal, modification or vacatur of a prior judgment or order upon which it is based.

(b) On stipulation. The clerk of the court may vacate a default judgment entered pursuant to section 3215 upon the filing with him of a stipulation of consent to such vacatur by the parties personally or by their attorneys.

(c) On application of an administrative judge.  An administrative judge, upon a showing that default judgments were obtained by fraud, misrepresentation, illegality, unconscionability, lack of due service, violations of law, or other illegalities or where such default judgments were obtained in cases in which those defendants would be uniformly entitled to interpose a defense predicated upon but not limited to the foregoing defenses, and where such default judgments have been obtained in a number deemed sufficient by him to justify such action as set forth herein, and upon appropriate notice to counsel for the respective parties, or to the parties themselves, may bring a proceeding to relieve a party or parties from them upon such terms as may be just.  The disposition of any proceeding so instituted shall be determined by a judge other than the administrative judge.

(d) Restitution.  Where a judgment or order is set aside or vacated, the court may direct and enforce restitution in like manner and subject to the same conditions as where a judgment is reversed or modified on appeal.

§ 317. Defense by person to whom summons not personally delivered

A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. If the defense is successful, the court may direct and enforce restitution in the same manner and subject to the same conditions as where a judgment is reversed or modified on appeal. This section does not apply to an action for divorce, annulment or partition.

 

[1] Barone v. Barone, 54 Misc. 3d 599 (Sup. Ct., Monroe County 2016).

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