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Vacating a Default Judgment

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 (cancel) the default judgment. If the judgment is vacated and the case is put back on the court’s calendar, the case is not over. You still have to defend the case, but the other side can no longer use the judgment against you. This section tells you how to ask, what papers you need to give the court and what the papers need to say.

 

Reasons the Court Can Vacate a Default Judgment

In some cases you may be able to vacate (cancel) the default judgment and start the case over. The following is an explanation of the two main reasons why the court may vacate a default judgment.

Lack of Personal Jurisdiction (bad service)
The court can vacate a default judgment if you were not given the papers starting the case the right way. To find out if you were not given the papers the right way, go to Common Examples of Bad Service. You can also ask the Court Clerk for a copy of the Affidavit of Service to see what it says about how the papers were given to you. If you try to vacate a judgment because of bad service, you do not need to give the court any other reason to vacate the judgment. But 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.

Excusable Default
This is the most common reason for vacating a default judgment. It has two parts: (1) a good reason why you missed your court date or did not Answer; and (2) a good reason why the plaintiff or petitioner should not win the case (a good defense). 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 reasons why the plaintiff should not win. This depends on the facts in your case. 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. For a list of possible reasons why the plaintiff should not win a debt collection case, see Common Defenses to a Consumer Debt Case. For a list of possible reasons why the plaintiff should not win in a foreclosure case, see Common Defenses to a Foreclosure Case. For a list of possible reasons why the plaintiff should not win in a landlord-tenant case, see Common Defenses to a Landlord-Tenant Case.

 

Asking the Court to Vacate a Default Judgment

If you want to vacate a default judgment in a consumer debt case, or a landlord-tenant case, make the court papers you need by using the free DIY (Do-It-Yourself) Form programs. These programs walk you step-by-step through the paperwork you need, gives you helpful definitions, explains common defenses and give you legal information. When you finish the program you get the court forms you need and instructions of what to do next. DIY Forms for: consumer debt, tenants outside NYC, NYC tenants.

If you can’t use the DIY Form programs, ask the Court Clerk for an Order to Show Cause. Most will have this form for you. Use the court locator box to find contact information for your court. You can also visit a Help Center. Read How to Ask the Court for Something to learn about Orders to Show Cause.

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