Legal Question in Credit and Debt Law in New York

Re: restraint order

You would have to tell us "which court" before anyone could tell you where to file the motion.

To have a default judgment vacated, you need to provide (1) a legal excuse for not having defended the case and (2) a meritorious defense on the merits.

Legal excuse might be that you were not served with the summons and complaint. Get the court file, look at the affidavit of service, and be prepared to attack the affidavit. For example, you might be described incorrectly. For another example, maybe you can prove you were not at home to be served even though the affidavit says you were served in person. Another example is that perhaps you were hospitalized when the summons was served and had no idea the lawsuit had been filed. If the debt arises out of nonpayment of a contractual obligation, the plaintiff has to give "additional notice" of the pending default. You should explain why you did not react to that additional notice, such as (a) you did not get it or (b) you did not see it until you got out of the hospital and plowed through the bushels of mail that piled up during that time.

Failure to serve the summons properly is a potential defense in its own right, but it will not get you very far unless you have a defense ON THE MERITS (i.e., a reason why you don't owe the money) with one exception: if the statute of limitations has expired. If the Statute of Limitations (6 years for most contracts; three years for most accidents) has run out, then a defense that you were not properly served becomes a defense on the merits, because the lawsuit might be over if you were not timely served. (Statute of limitations can be tricky; if you think you have a statute of limitations defense, I suggest VERY strongly that you spend the money to have a lawyer take a look at the case and advise you appropriately.)

In other cases, your meritorious defense is critical to the motion. Why would the court go through the nuisance of vacating a judgment if it's just going to be reinstated in the end? So you would need some good reason why you did not pay, or some claim you have back against them.

In cases like this, I always emphasize that it's worth having a lawyer look at the papers in the case to see if the Fair Debt Collection Practices Act was violated. It is violated with a great deal of regularity, and that violation can be worth more than the underlying lawsuit.

This post is not legal advice and does not create an attorney-client relationship. It is a comment on the legal question posed by the poster and should not be relied upon unless and until an attorney-client relationship is entered into. Doing so would require signing an engagement letter and depositing a retainer to secure payment of legal fees.

Re: restraint order

If you tell me what county in NY, then I can give you the address.

The best is 'lack of service'. Thatb would require that you not have had knowledge of the lawsuit and that you have some defense to the plaintiff's claims.