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 a judgment when you weren't properly served with court papers.Countering Default Judgments: Your Guide to Challenging Improper Service

If you weren’t properly served with the summons and complaint, you can challenge the judgment by showing lack of personal jurisdiction.

Start by getting a copy of the affidavit of service (from the court or opposing counsel). In your own affidavit, dispute any incorrect details—vague denials like “I never got the papers” won’t work. Be specific.

A well-detailed affidavit can get you a traverse hearing to challenge service. While debt collectors may say you need an excuse and a legal defense, Advisory Notice 13 says that proving improper service alone may be enough. Bring it to court.

Still, it's smart to also include your excuse for missing court and a meritorious defense—the stronger your affidavit, the better your chances.

If you need help, complete this intake form.

What Is a Traverse Hearing?

A traverse hearing lets you challenge whether you were properly served with court papers. It focuses only on how the lawsuit was delivered—not the debt itself.

At the hearing:

  • The plaintiff must prove service was done correctly (usually with an affidavit).

  • You can respond with specific facts showing service was improper (e.g., wrong address, wrong person, bad timing).

If the court agrees service was improper, the judgment can be vacated for lack of personal jurisdiction.

How to Prepare:

  • Review the affidavit of service carefully.

  • Gather proof (like lease agreements, ID, travel records).

  • Be ready to testify about what did—or didn’t—happen.

  • Consider speaking with a lawyer for guidance.

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What Is CPLR § 317?

CPLR § 317 is a New York law that allows a defendant to vacate a default judgment if:

  • They were not personally served with the summons (e.g., service was by mail or left at an address), and

  • They didn’t learn of the lawsuit in time to defend themselves, and

  • They have a meritorious defense to the case.

Key Deadlines:

  • You have 1 year from when you learned about the judgment, and

  • No more than 5 years from when the judgment was entered.

When It Applies:

  • You were sued in New York, but service was not done in person or through an authorized agent (as defined under CPLR 318).

  • You had no actual notice in time to defend.

  • You didn’t appear in court, and a default judgment was entered against you.

What You Need to Show:

  • That you did not get timely notice of the lawsuit, and

  • That you have a valid legal defense (e.g., wrong amount, mistaken identity, statute of limitations, etc.).

What Happens If You Win:

  • The court can vacate the judgment and let you defend the case.

  • The court may also order the plaintiff to return any money or property they received from the judgment.

Important Notes:

  • CPLR § 317 does not apply to divorce, annulment, or partition actions.

  • You carry the burden of proof.

  • This rule is different from CPLR § 5015, which also allows for vacating judgments but under broader circumstances.

👉 Tip: These motions are technical. It's wise to consult a lawyer familiar with New York civil procedure.

Understanding CPLR § 317 A New York law allowing you to challenge a default judgment when you weren't personally served.
  • You can find the full text of CPLR 317 below:

§ 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. N.Y. C.P.L.R. 317 (McKinney)

To summarize:

Based on CPLR 317, the defendant has the longer of the two deadlines to vacate a default judgment:

  • One year after they obtain knowledge of the judgment entry.
  • Five years after the judgment entry (absolute deadline).

This section applies when the defendant was served with a summons through a method other than personal delivery and they can demonstrate:

  1. They did not receive actual notice of the summons in time to defend the lawsuit.
  2. They have a meritorious defense to the claim.

Meritorious Defenses:

Meritorious defenses under CPLR § 317 refer to legitimate legal arguments you can present in court to convince the judge that the original lawsuit against you shouldn't have resulted in a default judgment. These defenses can vary depending on the nature of the original lawsuit, but here are some common examples:

  • Full or Partial Payment: The debt has been fully or partially settled, and evidence such as receipts or bank statements can prove this payment.
  • Statute of Limitations (expiration of time): The time limit for the creditor to file a lawsuit for the debt collection has expired, rendering the action untimely and unenforceable.
  • Prior or Ongoing Dispute: There exists a dispute over the debt or terms of the agreement that has not been resolved, questioning the validity of the claim.
  • Sued at the Wrong Address: The legal action was initiated using incorrect contact information, potentially violating procedural rules or due process rights.
  • Incorrect Amount: The amount claimed is inaccurate, and documentation can prove the actual amount owed is less or null.
  • Identity Theft: The debt was incurred by someone else using the defendant's identity fraudulently, not by the defendant.
  • Wrong Party: The defendant is incorrectly identified as the debtor; the actual debtor is someone else.
  • Unauthorized Changes: Changes were made to the account or contract without the defendant's knowledge or consent, affecting the validity of the debt.
  • Sudden Closure of Account: The account was closed unexpectedly by the creditor or bank without proper notification or justification.
  • Inadequate Dispute Review: The creditor did not adequately review or address disputes raised by the defendant regarding the debt.
  • Lack of Standing (No Prior Agreement or Relationship to Plaintiff/Creditor): The plaintiff does not have the legal right to sue because they have no legitimate connection or agreement with the defendant.
  • Unfair or Abusive Collection Practices: The creditor engaged in practices that violate fair debt collection laws, potentially nullifying the lawsuit.
  • Fraud by Family Member or Third Party, Including Forgery: The debt was incurred through fraudulent actions by someone known to the defendant or a third party, without the defendant's consent.
  • Fraud by Creditor or its Attorney: The creditor or their legal representation engaged in deceitful behavior in relation to the debt or lawsuit.
  • Underage Party Lacking "Capacity" to Form a Contract: The defendant was underage and legally unable to enter into the contract that led to the debt, making it voidable.
  • I Do Not Recognize this Debt | My Bills Were All Paid: The defendant does not acknowledge the debt as theirs, suggesting all obligations were previously settled.

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