How default judgments happen
A default judgment is entered when a defendant does not answer a complaint or appear by the deadline. Sometimes the papers were never received, sometimes they went to an old address, and sometimes they were set aside and forgotten during a difficult period. In New York, many of these judgments arise in consumer debt cases, and the first notice people see is a restraint on a bank account or an income execution against wages. The judgment can be enforced while you decide what to do, so delay has real costs. The motion to vacate is usually made in the court that entered the judgment.
What a court usually looks for
When a defendant was served but did not respond, a New York court generally expects both a reasonable excuse for the default and a potentially meritorious defense to the claim. A good excuse without a defense, or a strong defense without an explanation, is often not enough. The motion is also subject to time limits, and waiting after you learn of the judgment can weigh against you. A different analysis applies if you were never properly served, because a judgment entered without jurisdiction over you can be challenged on that ground, and the court may hold a hearing on whether service was valid. Gather every paper you received, proof of where you lived at the time, and anything showing the debt or claim is wrong.
Pausing enforcement while the motion is heard
Bringing the motion by order to show cause allows you to ask the judge for a temporary stay of enforcement, which may pause a garnishment or bank restraint while the motion is decided. Some bank funds, including certain government benefits, are protected from restraint under New York law, and an exemption claim can be made separately. If the judgment is vacated, the case usually returns to where it would have been, and you then answer the complaint and defend it. When you meet with us, we look at how service was claimed, when you learned of the judgment, and what defenses you have. Bring the bank notice, any court papers, and the affidavit of service if you have obtained it.
