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Vacating A Default Judgment (Order to Show Cause)

 

This guide provides general information for New Yorkers who are facing debt collection lawsuits in the New York City civil courts.  It does not apply to courts outside the state of New York.  It is not a substitute for obtaining legal advice in your individual case. 

What is a judgment?

A judgment is the court's written, final decision in the case.  If the judgment is against you, it will state how much money you owe to the plaintiff.

What is a judgment creditor?

A "judgment creditor" is a creditor or debt buyer that has obtained a judgment against a defendant.

What is a default judgment?

When a defendant fails to appear in court ("defaults") the court will issue a judgment against the defendant.  A judgment issued under those circumstances is commonly known as a "default judgment."   The court usually awards the plaintiff the amount demanded in the complaint, plus interest and court costs.  The court usually does not award attorneys' fees on a default judgment, but it may do so.

Can I re-open a default judgment?

Yes.  Under certain circumstances, it is possible to vacate (re-open) a default judgment.   The court has a special procedure for determining whether to vacate a default judgment.  The procedure is relatively simple, and most pro se defendants can navigate it successfully.

What are the criteria for vacating a default judgment?

There are two main reasons that a court will vacate a default judgment: (1) excuseable default and (2) lack of personal jurisdiction.  These reasons are explained below.

Excuseable Default

Excuseable default is the most common reason for vacating a default judgment.  It has two parts:  (1) a reasonable excuse for missing the original court date; and (2) a meritorious defense (a good defense).  There is a time limit for moving to vacate a judgment because of excuseable default -- one year from the date you were served with a copy of the judgment.  (If you were never served with a copy of the judgment, your one-year clock has not started.)

Common examples of a reasonable excuse:  The most common example of a reasonable excuse is that you did not receive a summons telling you to come to court.  Other reasonable excuses are that at the time you received the summons you were out of town, ill, incarcerated, unable to take time off from work, or that you could not answer the summons for some other good reason.  You would also have a reasonable excuse if, in response to the summons, you telephoned the attorneys for the plaintiff and they told you not to bother going to court.

Sometimes people do not respond to the summons because they do not understand what it is.  This is not normally considered to be a reasonable excuse; however, some judges will accept it.

Common examples of a meritorious defense:  A defense is a reason why you don't owe the money, not a reason why you can't pay.  For example, if you would like to use the defense of identity theft, you would write:  "This is not my debt.  I am a victim of identity theft."   For a list of possible defenses, see Common Defenses to Debt Collection Lawsuits.  If you don't know what else to write, most people can honestly state:  "I dispute the amount of the debt."  Disputing the amount of the debt, combined with improper service, is a sufficient (and very common) reason for the court to grant an order to show cause. 

Lack of Personal Jurisdiction (improper service)

The court can also vacate a default judgment if you were not properly served with a summons.  Look here for an explanation of New York's rules of service, including some common examples of improper service.  There are advantages and disadvantages to trying to vacate a judgment on the grounds of improper service.  The main advantage is that there is no time limit for seeking to vacate a judgment on the grounds of lack of jurisdiction.  Also, if you seek to vacate a judgment because of improper service, you do not need to cite a meritorious defense (or any defense).  The disadvantage of seeking to vacate a judgment on the grounds of improper service is that you have the burden of proving the bad service, which you must do at a special hearing called a "traverse hearing."  Proving improper service can be difficult depending on the facts of your case.

How do I vacate a default judgment?

First, find out which court issued the judgment.  (In a debt collection case, you will most likely need to go to the civil court in the county where you live.)  Next, go to the court that issued the judgment and find the civil court clerk's office.  There, tell the clerk that you want to file an "Order to Show Cause."  The clerk will give you a pre-printed form to fill out.  You can look at a copy of the form here.  The clerk can also help you to fill out the Order to Show Cause form.

The NYS Office of Court Administration has produced an interactive online program that can also assist you in completing the Order to Show Cause form.  You may access the online program here (look for Affidavit to Vacate a Default Judgment in a Consumer Debt Case.)

What should I write on the Order to Show Cause form?

On the Order to Show Cause form, you need to explain why the court should vacate the judgment.  In other words, you have to establish either excuseable default, or lack of jurisdiction, or both.  We recommend that you always include on the form (a) the reason why you did not appear in court; and (2) a meritorious defense.  If you need help deciding what to write on your Order to Show Cause, please call the NYC Financial Justice Hotline at 212-925-4929.

 

Know Your Rights!

Sometimes, the court clerk will tell you not to say that you did not receive a summons.  This "advice" is improper.  You have the right to challenge improper service!  And, in fact, improper service is often at the root of a default judgment.   If you were not properly served, you should always say so in your Order to Show Cause.

 

Should I write anything else on my Order to Show Cause?

If you have a frozen bank account that contains exempt funds, if your wages are being garnished, or if there is some other emergency situation requiring that your judgment be vacated more quickly than usual, you should include this information on your Order to Show Cause. 

What happens after I fill out the Order to Show Cause?

After you fill out the Order to Show Cause form, it goes to a judge for signature.  In Brooklyn (Kings County) you will take it up to the judge yourself.  In all other counties, the court staff will take it for you.  In both cases, you will have to wait to find out whether the judge signs it.

If the judge signs your Order to Show Cause, you will have to serve it on the attorney for the plaintiff.  The court will instruct you on how to serve the papers.  The court will also give you a date to come back to court - your "return date."  The return date is supposed to be within eight days of your Order to Show Cause, but in some courts you might have to wait two or three weeks for a return date.  Therefore, if it is an emergency situation, and you cannot wait two or three weeks to see a judge, you should advise the court of this fact at the time you submit your order to show cause.

If the judge does not sign the Order to Show Cause, then the judgment stays in place.  Don't despair!  Call the NYC Financial Justice Hotline for advice about what to do next.

What happens at the return date?

At the return date, you will most likely find yourself sitting in a courtroom with a number of other people who are in the same position as you.  The court clerk will call out your name, and you should answer clearly.  The attorney for the plaintiff may call out your name as well.  The plaintiff's attorney might consent to your order to show cause or ask whether you want to make a settlement agreement.  No matter what the plaintiff's attorney says to you, it is important that you focus on making sure that the default judgment is vacated.  If the plaintiff's attorney does not consent to vacating the judgment, you should ask to go before the judge.  When you are before the judge, you must focus on the arguments you made on the Order to Show Cause form.  Simply keep repeating (1) your good reason for failing to appear in court; and (2) your defense in the case.  As long as you have a reasonable excuse and a meritorious defense, the judge should grant the order to show cause and vacate the judgment against you.  If you want to argue lack of jurisdiction because you were not served with a summons, you must ask the judge for a traverse hearing. 

What if I have a frozen bank account or wage garnishment?

Once the default judgment is vacated, the plaintiff must release your bank account and cancel the wage garnishment.  This is included in the court's order vacating the judgment.

If the judgment is vacated, does that mean the case is over?

Probably not.  In most cases, even though the judgment is vacated, you still have to defend the case.  That means you have to file an answer and attend at least one additional court date.

 

More Information

How to Read a Civil Court Summons (PDF)

The Basics of Defending Creditor Lawsuits

Common Defenses to Creditor Lawsuits

Preparing for Your Court Date

Negotiating A Settlement Agreement in Court

Frozen Bank Accounts

Wage Garnishment

What is Exempt from Debt Collection?

 

Helpful Links and Resources

LawHelp/NY: attorney referrals and information for pro se litigants

National Association of Consumer Advocates: national database of consumer lawyers

New York City Civil Court: information about representing yourself in court, including contact information and court forms

eCourts: information about cases filed in New York courts

Laws of New York: complete text of New York laws

 

Disclaimer:  This site provides general information for consumers and links to other sources of information.  This site does not provide legal advice, which you can only get from an attorney.  New Economy Project has no control over the information on linked sites.

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