It seems like at least once a week, I get a call from someone who has had money frozen in their bank account due to entry of a judgment. In some cases, s/he does not even know that s/he was sued. Then there is a very limited amount of time before the creditor obtains a court order for the bank turn over the funds, to try to set the judgment aside.
There are some definite rules and requirements for vacating default judgments. Generally, a motion to vacate must be filed within the one year period after the judgment is entered. However, if you can prove that the defendant was never served with the summons and complaint, that time period may be extended.
In order to prevail on a motion to vacate a default judgment, you must show “excusable neglect” and a meritorious defense. One example of excusable neglect is that the creditor served the summons and complaint at an invalid address, which is why the defendant did not know that s/he was being sued. The defendant has the burden of showing that s/he did not live at that address.
If a defendant fails to answer the complaint, then the creditor may enter a default, which must be sent to the defendant. Similarly, after the creditor obtains judgment, it must send a copy of the judgment to the defendant. On a motion to vacate a default judgment, it may be that the creditor cannot prove that it sent the default or the judgment to the creditor, which can buttress the defendant’s position and support the motion.
Another example of excusable neglect is that the defendant was out of state when the summons and complaint were served and therefore did not have an opportunity to file an answer. However, the defendant should not sit on the papers for eleven months and then file the motion.
The second part is that the defendant has a meritorious defense. On a credit card debt for example, it may be that the defendant did open the account and owe money, but the amount of the judgment is excessive. In that case, the defendant would be able to contest the amount due which would be a valid basis for vacating the judgment.
Another example of a meritorious defense is a case where a plaintiff was bitten by a dog and believes that the defendant owned, rented or controlled the location where the incident happened. If that is not true, then the defendant would have a meritorious defense.
It should be noted that vacating a default judgment is highly discretionary with the judge and should not be attempted without the involvement of an experienced civil litigator.
