New York City Debt Collection Defense Attorney

How to Overturn a Judgment: The Key Role of Bad Service

Countering Default Judgments: Your Guide to Challenging Improper Service

Improper service of the summons and complaint often is your primary weapon to seek relief against a judgment. Here's a blog post discussing the fundamental law involved in that process.

Establishing lack of personal jurisdiction due to improper service should be enough to get you a hearing on that issue. But I implore you to first get a copy of the affidavit of service and dispute every fact you can in your affidavit when starting the process. To get the affidavit of service, you can order it from the court or ask the collection law firm for it. Judges need to see you rebut the facts of service with specificity. Conclusory denials that you did not receive the papers is not enough.

If you dispute the affidavit of service with sufficient detail, it should be enough to get you a hearing as to service ("traverse hearing"). Collection lawyers will argue that you must also provide an "excuse" for not appearing in court and a "meritorious defense" to the underlying case. But Advisory Notice 13 confirms that a good showing of lack of personal jurisdiction (i.e. bad service) avoids the need to provide an excuse and a meritorious defense. Bring this notice to court.

Of course, it is always best to provide excuses and meritorious defense in addition to facts establishing bad service. The more robust your affidavit, the better. Civil court judges will be pleased with the effort you put in to protect yourself.

The Significance of a Traverse Hearing in Challenging Service

A traverse hearing serves as a crucial juncture in your journey to contest a default judgment. This hearing specifically addresses the validity of the service of process and is your opportunity to present evidence that the service was not in accordance with legal standards. It's essential to prepare meticulously for this hearing by gathering substantial evidence to support your claims of improper service.

During the traverse hearing, the burden of proof initially lies with the plaintiff to demonstrate that the service was executed properly. Once they present their evidence, typically through an affidavit of service, you have the right to counter with detailed factual denials. This can include discrepancies in the service process, such as incorrect address, timing issues, or any other aspect that deviates from the legal requirements.

If the court finds that the service was indeed improper, it may result in the judgment being vacated due to lack of personal jurisdiction. This is because proper service is a cornerstone of due process and is necessary for the court to exercise jurisdiction over an individual.

While preparing for the hearing, consider these additional strategies:

  • Review the process server's affidavit against your own records and personal recollections of the relevant dates.
  • Gather any supporting documents that corroborate your version of events, such as dated proof of residence at a different address or travel records.
  • Prepare to testify at the hearing about the service process, if required.
  • Seek legal advice to ensure your rights are fully protected and to navigate the legal intricacies of the hearing process.

Remember, the aim of the traverse hearing is not to dispute the debt itself but to challenge the manner in which the legal proceedings were brought against you. If successful, it provides a path to dispute the underlying claim properly and fairly in court.

Collection Defense Intake Form: The Langel Firm

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