By: Robert J. Nahoum
You’re at the grocery store buying the family groceries, the cashier rings you up and you swipe your debit card; embarrassingly, the cashier tells you that your card is no good. You call your bank and are told that your bank account has been frozen. How can this have happened? Turns out, you were sued by a debt collector; you didn’t answer the lawsuit, and a default judgment was entered against you. In order to reverse or as the lawyers call it “vacate” a default judgment, you need to file an “Order to Show Cause” with the court.
Default judgments are generally entered against consumers who didn’t know they had been sued. Consumers who don’t know they were sued were usually were never properly served with a summons and complaint. New York laws require that when a debt collection lawsuit is filed against for things like old credit card debts, cell phone bills or even doctors’ bills, a process server has to deliver the lawsuit to you or someone at your home or after enough attempts, by taping it to your door and mailing a copy (called “nail and mail”). The problem is, often this service never happens. The process server signs an affidavit saying that he or she delivered the papers to you when in actuality, he or she did not.
Debt collectors love default judgments. In fact, if it were not for the overwhelming prevalence of default judgments the debt collectors would probably be out of business. When a consumer fails to answer the summons and complaint, the debt collector can have a default judgment entered in less than 60 days. For this reason, it is no surprise that between sixty and ninety-five percent of all consumer debt collection lawsuits are estimated to result in default judgments.
With a default judgment in place, a debt collector can easily freeze bank accounts, garnishee wages, seize property and subpoena friends, family and co-workers of the consumer.
What You Should Do:
So what do you do if you discover that a default judgment has been entered against you? Fortunately, New York courts have recognized that default judgments are highly questionable particularly due to the pervasiveness of improper service of the summons and complaint. For this reason, it is pretty easy to have the default judgment reversed or vacated. To do so, you go to the courthouse and file an “order to show cause” along with a sworn affidavit from you (the court clerks have forms). Your affidavit must swear to two points, (1) that you have a reasonable excuse for your default (like you were never served with the papers); and (2) that you have a defense to the case (like you don’t owe all or part of the debt or that you have never heard of the plaintiff). You deliver the papers to the attorney for the debt collector and show up in court on the designated date. More times than not, your order to show cause will be granted and the default judgment will be vacated.
Beware, after the default judgment is vacated, that debt collector is still going to try and collect the debt. Hiring a qualified and competent New York attorney can help to make certain that that the debt collector is not taking advantage of you.
Default judgments are a debt collector’s bread and butter. Collecting a debt from a consumer with the tools and resources of the judicial system is made much easier when the debt collector doesn’t even need to prove the case. What debt collectors don’t want you to know is that consumers can fight back by filing an order to show cause to vacate the default judgment.
If you need help settling or defending a debt collection law suit, stopping harassing debt collectors or suing a debt collector, contact us today to see what we can do for you.
The Law Offices of Robert J. Nahoum, P.C