Avoiding or ignoring court papers, even unintentionally, can result in a default judgment against you. But if you find yourself with a default judgement, you can still vacate it. Here’s how.
If you are served with a lawsuit in the State of New York—whether for a breach of contract, divorce, foreclosure, or any other matter—you have between 20 and 30 days to respond. (The timeframe depends on how the papers were served. In some landlord/tenant cases it can be even less.)
It’s a bad idea to avoid or ignore these papers. If you do, it can result in a judgment against you and could result in large monetary judgments on the basis of default.
And even if you do respond to the lawsuit in a timely manner, failure to respond to other court papers at different stages of the litigation can result in a default judgment against you.
Vacating a default judgment is possible, but the process would likely cost thousands of additional dollars in unnecessary legal fees. The smarter thing to do is to respond to any legal papers you receive, and promptly.
If you have defaulted, and a judgment has already been entered against you, there is still hope. The Courts favor hearing cases on their merits. If you meet the criteria to vacate a default judgement, the court will allow you to respond.
To vacate a default judgment, or better yet, to avoid receiving one following a late response, you must show:
- a reasonable excuse for the failure to respond, and
- a potentially meritorious defense.
The determination of what constitutes a “reasonable excuse” lies within the sound discretion of the trial court. The longer the delay between the default judgment and moving to vacate it, the less likely the chance of success. (Though even in cases of a long delay, the Court will be inclined to vacate the judgment if the explanation is reasonable enough.)
However, simply claiming you never received the papers won’t suffice. Since a process server’s (the person sent to hand you the papers) affidavit is presumed to be valid by the court, you’ll need to explain in reasonable detail why the papers weren’t received. If evidence exists to support your claim, it must be provided.
You must also provide detailed facts and evidence to demonstrate why you have a successful defense or claim against the other side.
As an attorney representing clients in both commercial and civil litigation, there have been many times that I’ve had to help people vacate default judgments that could have been easily avoidable.
Recently, it seems that these types of cases are increasing. If you’ve received court papers, don’t disregard, procrastinate, or evade them. And if you’ve defaulted and a judgment has been taken against you, it’s not too late. We’re here to help.