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That is pretty easy to do. All you have to do is file a Motion to Set Aside Default Judgment with the clerk of court where the action was originally filed. You will probably also need to file an affidavit. The clerk should have the paperwork for you to fill out.
In deciding whether to set aside a default judgment, courts seek to balance two competing interests: (1) the need to promote judicial economy; and (2) the need to preserve an individual's right to defend on the merits. Therefore, in addition to the requirement that defendant show that the judgment was entered through excusable neglect or another statutory ground, the court will consider a variety of factors, including:
1) the nature and extent of the prejudice which may be suffered by the non-defaulting party if the default is set aside;
2) the presence of material issues of fact;
3) the presence of a meritorious defense to the claim;
4) the significance of the interests at stake, including, but not limited to, the amount of money involved;
5) whether the failure to answer was intentional or willful or the result of conscious indifference;
6) whether party or counsel bears responsibility for default; and
7) the availability of less drastic sanctions.
Just make sure you have a good reason for not showing up at the original court date and you should be okay. Please feel free to come back here and ask me additional questions if you need help after you get the forms.
I see you have posted this question twice so I am going to close out the other one and let you continue to post here. If you give me your name, I will try to find where the judgment is.
I did not show up at the original court date b/c i was never served or notified. I always thought that was illegal. So the court will do all this even if they A) Do not have my name on any files and B) The case number XXXXX was given by the lawyer suing me is "invalid"
Also, I live in L.A. CA now. Would I be expected to go to NY for this if I do have to show up in court?
I also did not find any information on the clerk's website in Rome,NY on your case. It seems that the attorney's office is trying to give you the run around. You are correct that if you are not served, they cannot obtain a judgment. Not only that, but the NY courts do not have jurisdiction over CA residents in this kind of situation. Unfortunately, many attorneys and process servers have been falsifying records lately just so they get paid. This is unethical and illegal. What you need to do at this point is call back the attorney's office on Friday and ask for a copy of the judgment against you. Tell them that you were not properly served, that you know records have been falsified, and that you are going to file a grievance with the NY State bar if they do not give you the information you are requesting. This should get their wheels spinning. If they still will not comply (which I am sure they will) you need to call 1-800-342-3661 to report this attorney and the Bar Association will take care of it for you.
Ok. Will this take the "freeze" off of my bank account as well? I just moved to California 6 months ago. Can I sue them for all this inconvenience in small claims court,here in LA county?
When you get the paperwork from this attorney, it will tell you the actual court where you got the judgment. You can then file the motion to set aside the judgment and will then be able to counter sue for any damages on amount of the attorney's negligence. This will also take the freeze off your account. However, just as NY does not have jurisdiction over you, the CA courts do not have jurisdiction over people in NY. Therefore, you will have to file in NY if you decide to file.
Yes, if it past the statute of limitations. Unfortunately, if the attorney has falsified records, the court will not be aware of that until yo bring it to their attention. You will have a cause of action against the attorney for causing this whole big mess, but the answer is yes, you are going to be burdened in the meantime. I would certainly file the grievance, if I were you, as the attorney could have his licensed pulled, as well as having to pay you restitution. It is an unfortunate situation and it is things like this that gives all of us attorneys bad names. I am very sorry you are having to deal with this.
You are so welcome. Thank you so much for the bonus. Please feel free to come back for help on the motion. I will help for free. I do not like that this has happened to you. It is a travesty of justice and I will do anything I can to help.
For you, always! Ask away.
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