Vacating a Judgement

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This is a must read for anyone facing a lawsuit.

There are many dilemmas in the law.

One of them is whether or not to fight a complaint and risk them perfecting their case and make the Summary Judgment immune to collateral attack or review the complaint, see that all the affidavits are third party hearsay, take the default, then after the written contract SoL is past, collaterally attack the default judgment as lacking in subject matter jurisdiction due to a complete lack of competent fact testimony.

Many times when answering the complaint with affirmative defenses, the JDB voluntarily dismisses rather than spend the money to perfect the case.

This is the big decision facing the defendant. How to win the case, either by fighting and hope the other side does not want to spend the money to get a Summary Judgment or take the default and collaterally attack the void default judgment that was never perfected to confer subject matter jurisdiction on the court.

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Found the following here:

Specific to NY Civil Courts (Kings County)


How to Vacate a Judgment in Civil Court

Many people who have been sued in Civil Court have judgments (court orders to pay money) entered against them because they defaulted, that is, they didn't show up to defend themselves. Sometimes they never received notice of the court case. Other times they had a good reason for not appearing, such as being sick.

People who lose their cases through default can seek to have the judgment against them vacated (thrown out) by getting an Order to Show Cause. An Order to Show Cause is a legal paper, signed by a judge, that orders the other side to appear in Court and give a good reason ("show cause") why the judgment should not be vacated.

To get an Order to Show Cause in Kings County (Brooklyn) Civil Court, go to the Special Term clerk's office at 141 Livingston Street (corner of Smith Street), Room 906. There are similar offices in other boroughs. The clerks will help you fill out a 2-page form. State clearly why you did not go to court and explain your defenses to the claims made against you.

After you sign the form (affidavit) saying what happened, the clerks will take the form to a judge for signature. After the judge signs, you must serve a copy of the Order to Show Cause on the attorney for the other side by mailing a copy of the Order by regular mail with certificate of mailing (you can get this from the Post Office). Then go back to Room 906 to fill out an "Affidavit of Service." This is a sworn statement that explains how you served the Order to Show Cause.

The Order to Show Cause will have a date to appear in court. You must show up on time and in the right court room. The hearing will be held at 141 Livingston Street in Room 809. The Judge will call your name and you will get to explain your case. Be prepared to explain again why you did not show up the first time and why you should win the case (for example, "I didn't borrow the money he claims" or "the furniture was defective").

If the papers were never served properly on you, the case should be thrown out completely. But often the Judge just vacates the default judgment and goes on with the case. If the judgment is vacated because the defendant had a good excuse for not appearing, the judge will go ahead with the case. In either situation, IT'S BEST TO BE READY TO PROVE YOUR SIDE OF THE CASE RIGHT AWAY. If the judge schedules the case to be tried on another day, you will have a chance to be even better prepared. Be ready to prove your case every time you go to court.

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In NY you don't always have to make an appearance in court. I recently filed a motion to vacate in Albany County, I filed the motion with forms provided to me by the Court. The Court "heard" my motion which I then had to mail to the CA's attorney. The CA's attorney filed a motion to block my motion to vacate, because they argued that in NY State a judgment, even a default one cannot be vacated after one year. That is true, but there are special circumstances that override that rule, such as new evidence or misconduct of the plantiff.

In the end the Judge granted my motion because according to the NY Civil Practice Law and Rules, Rule 5015(a)(4), because I was not properly served "the Court did not have jurisdiction over the person of the Defendant". This was on a default judgment that was almost 2 years old, where I was "served with a summons" at an address that I had not lived at in over 3 years (nice try scumbags!).

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