If you don’t file an Answer or you miss a court date, the party suing you will ask the court for a default judgment against you. You can ask the court to vacate (undo) the default judgment. If the judgment is vacated and the case is put back on the court’s calendar and the case will continue. You still have to defend the case, but the other side no longer has a judgment against you.  There are two main reasons why a court may vacate a default judgment.

The court can vacate a default judgment for lack of personal jurisdiction – if the summons was not served on you (delivered) properly according to the legal requirements. You will have to prove the bad service to the court at a special hearing called a “traverse hearing.” If the court finds that the service was good and you did not give the court another reason, the court will not vacate the judgment.

The court can also vacate a default judgment if there is a reasonable excuse. This is the most common reason. Under CPLR 5015, it has two requirements: (1) a good reason why you missed your court date or did not answer; and (2) a “meritorious defense” which means a good reason why the plaintiff  should not win the case. Your time to ask to vacate the judgment for this reason may be limited if you were served with a copy of the judgment.

The most common example of a reason for missing court or not answering is that you never got any papers telling you to come to court. Other examples of good reasons are that you were out of town, ill, incarcerated, unable to take time off from work, or had transportation problems. You would also have a good reason if the attorneys for the other side told you not to bother going to court. Sometimes people do not answer because they do not understand what the court papers are. This is not usually a good reason but some judges may accept it.

There are many possible defenses or reasons why the plaintiff should not win. This depends on the facts in your case and requires careful analysis by an experienced attorney. For example, in a consumer debt case, the defendant might tell the court that the default judgment should be vacated because he disputes the amount of the debt. Disputing the amount of the debt, combined with bad service, is a common reason to ask the court to vacate a default judgment.

To try to vacate a default, you must file a motion which means a set of papers, including an affidavit (sworn statement) and exhibits (any documentary proof. Your attorney may also file a memorandum of law or brief to explain the laws that support your position and reasons.

If you found out that a judgment was entered against you on default and wish to vacate it, or if you already have a judgment against someone and received an order to show cause to vacate your judgment, contact us online or call Scott Lanin, Esq. at (212) 764-7250 Ext.201. We offer a free phone consult to review and evaluate your case or you can schedule an office consult.