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  1. #1
    Join Date
    Nov 2008
    Location
    yonkers ny
    Posts
    7

    Default "Order to Show Cause"

    My question involves collection proceedings in the State of: NY

    Hello all!


    Nco obtained a default judgement against me and levied my bank account. I followed the advice I was given here (Thank you Betty3!) and went to the courthouse and obtained the file for the judgement. I also filed an order to show cause and scheduled a court date for 2 weeks from now. My question is does Nco's attorney have to show proof of my debt to keep the judgement?
    The reason I gave for filing is I was never served the summons . according to the affidavit given by the process server he attempted to contact me twice and noone of legal age was here to sign,he also said my adress was verified by a neighbor. The neighbors name is someone I have never even heard of and according to my white pages search does not live anywhere near me. This person also verified for the server that I am not in the armed forces. Is this a legitimate reason to have the judgement vacated? The credit card account in question was never applied for by me nor recieved or used by me.Thank you in advance.

  2. #2
    Join Date
    Jan 2008
    Location
    Toledo, OH
    Posts
    16,307

    Default Re: "Order to Show Cause"

    The neighbors name is someone I have never even heard of and according to my white pages search does not live anywhere near me. This person also verified for the server that I am not in the armed forces. Is this a legitimate reason to have the judgement vacated? The credit card account in question was never applied for by me nor recieved or used by me.
    A better reason for vacating the judgment is that it isn't your account, you never applied for, received or used the card.

    The onus is on NCO to prove otherwise.

  3. #3
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: "Order to Show Cause"

    These are the most obvious rules for challenging a default; although you didn't specify, I assume you're relying upon Rule 317:
    Quote Quoting New York Civil Practice Law and Rules, Sec. 317. - Defense by person to whom summons not personally delivered.
    A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. If the defense is successful, the court may direct and enforce restitution in the same manner and subject to the same conditions as where a judgment is reversed or modified on appeal. This section does not apply to an action for divorce, annulment or partition.
    Quote Quoting New York Civil Practice Law and Rules, Sec. 5015 - Relief from judgment or order.
    (a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:
    1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or

    2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or 3. fraud, misrepresentation, or other misconduct of an adverse party;
    or
    4. lack of jurisdiction to render the judgment or order; or

    5. reversal, modification or vacatur of a prior judgment or order upon which it is based.
    (b) On stipulation. The clerk of the court may vacate a default judgment entered pursuant to section 3215 upon the filing with him of a stipulation of consent to such vacatur by the parties personally or by their attorneys.

    (c) On application of an administrative judge. An administrative judge, upon a showing that default judgments were obtained by fraud, misrepresentation, illegality, unconscionability, lack of due service, violations of law, or other illegalities or where such default judgments were obtained in cases in which those defendants would be uniformly entitled to interpose a defense predicated upon but not limited to the foregoing defenses, and where such default judgments have been obtained in a number deemed sufficient by him to justify such action as set forth herein, and upon appropriate notice to counsel for the respective parties, or to the parties themselves, may bring a proceeding to relieve a party or parties from them upon such terms as may be just. The disposition of any proceeding so instituted shall be determined by a judge other than the administrative judge.

    (d) Restitution. Where a judgment or order is set aside or vacated, the court may direct and enforce restitution in like manner and subject to the same conditions as where a judgment is reversed or modified on appeal.
    In setting aside a default, the initial burden is on you to demonstrate a meritorious defense. I expect that you submitted at least a statement describing your defense (which I assume to be along the lines of "The credit card account in question was never applied for by me nor recieved or used by me"), and perhaps an affidavit, to get to the point of having a hearing. For a hearing under Rule 317, assuming the court has not already found as much in granting you the hearing, you have the initial burden of demonstrating that you have a meritorious defense. At the hearing, I expect the plaintiff to argue both that you were properly served and that your defense is not meritorious.

    Did you know about the account, and that your name was on it, when these issues arose?

  4. #4
    Join Date
    Nov 2008
    Location
    Bloomfield, New Jersey
    Posts
    21

    Default Re: "Order to Show Cause"

    You motion the court to vacate the judgment on the grounds of lack of jurisdiction- improper service. Thereafter, once the case is re-opened and placed on a trial track you raise the defense that you the credit card is not yours, etc.

    Good luck.

  5. #5
    Join Date
    Jan 2009
    Posts
    1

    Default Re: "Order to Show Cause"

    Hi,

    I have a similar issue in NY civil court. I originally filed an affidavit of opposition to a summary judgement and the plaintiff asked the judge for more time to review my response. The judge didn't give me an updated date for the new hearing but said the plaintiff would get 14 days and you'll get 14 days to reply to the response. He also delayed the trial a couple months which was reflected in the paper I received, the new motion hearing date was not specified.

    Before the 28days were up, I got a paper saying there was a pending entry against me by default. I never received any information on a new hearing, and I never received the plaintiff's reply. I asked the clerk if there had a been a new hearing and his reply was that this was probably "entered by submission". i.e., the lawyer for the plaintiff can goto a judge's chamber and get an entry, is that possible??

    I filed an order to vacate but it looks like the system is decked against pro se litigants and the judge was very skeptical even though I mentioned I wasn't given a new hearing date, I don't own the debt, and I wasn't served properly, and I was contesting all the facts. He gave us two envelopes and said you'd get a decision by mail. On prior occasions, the decision has been made right then and there so I'm thinking maybe this will go against me.

    If this goes against me, what options do I have? Can I file a new motion or a new order to vacate? Or is it basically over and I need to file an appeal. Any help would be appreciated.

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