Defaulted on Discover Card Debt

[hjohnstown]

i recieved a letter from my magistrate on aug19,2006. in a case involving wolpoff and abramson. i was suppose to go to the hearing on sept 19 th at 9:30am. i could not make it there because the was an emergency , i had to take my son to the hospital. according to my records this is for a discover card that they said they bought. i havent had a discover card for 5 years. i live in pa. So the magistrate sent me a default jugement letter. what do i do.

[aaron]

In what state?

[hjohnstown]

pennsylvania

[Mr. Knowitall]

According to a recent Pennsylvania case,

A Petition to Open a Default Judgment is an appeal to the equitable powers of the court. "The decision to grant or deny a petition to open a default judgment is within the sound discretion of the trial court[.]" Dumoff v. Spencer, 2000 Pa. Super. 176, P3, 754 A.2d 1280 (2000).

A default judgment may be opened when all of the following requirements have been satisfied:

(1) a prompt filing of the petition to open the default judgment;

(2) a meritorious defense to the underlying claim; and

(3) a reasonable excuse or explanation for its failure to file a timely responsive pleading.

"The trial court cannot open a default judgment based upon the 'equities' of the case when the defendant has failed to establish all three of the required criteria." Flynn v. Casa Di Bertacchi Corp., 449 Pa. Super. 606, 674 A.2d 1099, 1103 (1996). The court need not conduct a separate inquiry regarding the alleged prejudice to the parties. Dumoff, 2000 Pa. Super. at P10, 754 A.2d 1281 ("after reviewing applicable case law regarding the untimely filing of a petition to open judgment, we find that prejudice is not a separate element examined by the courts when [defendant] did not establish all three requirements of the test to open the default judgment").

You would likely benefit from having a lawyer help you draft a motion to set aside the default. As prong 1 suggests, you need to be prompt in filing a motion - time is not your friend.