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GWarren For Business & Nonprofits
GWarren For Business & Nonprofits, Attorney
Category: Business Law
Satisfied Customers: 355
Experience:  30 yrs Counsel, AVP Corp Governance Fortune 100 finance/ins, Nonprofit Bds, law firm. OH NJ license
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a confession of judgment from https //www.blumberglegalf

Customer Question

a confession of judgment from https://www.blumberglegalforms.com/Forms/245.pdf was filed; but the filing attorney only filled out the name of the defendent, and did not out cross out the blank where it refers to whether the defendent represents himself or a corporation. also by the defendents name there is no address just the defendents name so that the judgment could have been made to enter against a company of which defendent is a member. could this judgment be invalidated as it was notarized incomplete?? this is in ny state
Submitted: 4 years ago.
Category: Business Law
Expert:  GWarren For Business & Nonprofits replied 4 years ago.
Thank you for contacting justanswer.

Since the confession of judgment is an affidavit the omission of the address and the status of the defendant as an individual or corporation would typically be viewed as non-material by the court (in this case the local supreme court?) as those elements could be cured by further evidence or Motions to Amend, Supplement or Correct Pleadings associated with the confession of judgment.

The local bar association lawyer referral can assist you to identify lawyers you can interview as to their experience and fees in similar situations.

If you would like further clarification please let me know.


Customer: replied 4 years ago.
i am trying to help the defendant here. he wont sign any amendments and i think it was purposely done so they usejudgment against his firm. would such a argument vacate the judgment?
Expert:  GWarren For Business & Nonprofits replied 4 years ago.
Thank you for your prompt reply and the further detail you provided.

If the defendant was listed as an individual with no reference to his company, a defense may be available to vacate the confession of judgment if it related only to a company and the named individual defendant was protected from personal liability in the matter by the corporate entity.

It would take an action by proper motion to vacate the judgment on that basis, which my require the defendant's pro se action (representing himself) or representation by a local attorney.

I hope this further information is helpful. Best wishes.
Customer: replied 4 years ago.
but my question is, whether there is a possibility of moving to vacate it, just on the grounds that it had been designed to be able to be used according to plaintiffs whim. and part of that argument would be to discredit the notarization.
Expert:  GWarren For Business & Nonprofits replied 4 years ago.
Thank you for your review of the answer and further reply.

Confessions of judgment are typically designed as an enforcement tool by plaintiffs to enforce promissory notes and other obligations owed by others and as you indicate, unfortunately, can be used by creditor plaintiffs (at their whim) when individuals owing them monies may fail to pay under the terms of a prior agreement to enforce payment(s) owed.

If the defendant voluntarily signed the affidavit and was physically present in front of a notary to attest to and sign the affidavit, it will be difficult to challenge the notarization on the basis that not every detail in the affidavit was completed.

Notaries are responsible to ensure the identity of the person signing the document.   The notary is not responsible for document completion or verifying the truth or accuracy of the contents of a document.

Following is a direct link to the New York Notary Public License law for your reference:

http://www.dos.state.ny.us/lcns/lawbooks/notary.html

Notaries are not charged with the responsibility to ensure that every detail is completed in an affidavit or even to read the affidavit. The notary is responsible only to ask that the identified individual is signing the affidavit as a truthful statement.

Following is a link to a public domain website that explains the responsibilities of the notary in New York:

http://www.newyorkmobilenotaryservice.com/general.html

I hope this further detail is helpful.
GWarren For Business & Nonprofits, Attorney
Category: Business Law
Satisfied Customers: 355
Experience: 30 yrs Counsel, AVP Corp Governance Fortune 100 finance/ins, Nonprofit Bds, law firm. OH NJ license
GWarren For Business & Nonprofits and 6 other Business Law Specialists are ready to help you
Customer: replied 4 years ago.
thank you for answering me so late at night!
Expert:  GWarren For Business & Nonprofits replied 4 years ago.
Thank you for your kind note. Not a problem as I understand the concern you have to assist the defendant and did not want to leave your concerns unanswered.

If I can assist with further information or clarification, please let me know.
Customer: replied 4 years ago.
did you open the link i sent you? if yes, you should see that the advice the attorney to strike out matter in parentheses if defendant is a individual. that made me think there might be a issue here.
Expert:  GWarren For Business & Nonprofits replied 4 years ago.
Thank you. XXXXX reviewed the form prior to my initial research and response. I do not view the omission (the failure) to strike out the reference to "corporation" as a material error that would avoid the application of the affidavit against the individual defendant.

If the status of the defendant as an individual or corporation is an issue as to ability to satisfy the judgment that issue could be raised to vacate the judgment or in later collection proceedings. However, the open reference would appear to enable the plaintiff to proceed to collect the judgment against the named defendant as an individual. It may not, however, enable to the plaintiff to proceed against an unnamed corporation if the individual named is not the name of the corporation.

If the debt was only owed by a corporation and the individual signed the confession of judgment, it could be found that the individual personally assumed the debt of the corporation (similar to a bank loan, for example, when an individual initially forms a company and signs the loan personally with personal collateral).
Expert:  GWarren For Business & Nonprofits replied 4 years ago.
Just a few further thoughts that may assist you as you help the defendant: If it can be shown that the individual defendant who signed the confession of judgment was coerced or otherwise forced to sign the document against their will, was incompetent to sign it at the time (under influence of drugs, alcohol, mental impairment, etc.) or did not sign in front of the notary on the date stated (for example can prove was not in the state, etc.), those may be further reasons to challenge the validity of the affidavit.

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