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In these instances the client generally has three options:
1. Seek to vacate the judgment based on legal excuse, if there are grounds to do so.In order to vacate a default judgment, the defendant must make an application to the court that rendered the judgment. What is meant by legal excuse is that you had some extenuating circumstance that stopped you from appearing - sickness, death in family etc., and you must show that you have a legally viable defense to the action (i.e., you don't owe the debt). Even if you don't have a good reason for missing the court date, I'd apply anyway...the court will probably show leniency.
An application to vacate a default judgment is made by a procedure known as an “Order to Show Cause
”. The order to show cause must contain the legal grounds upon which the defendant seeks to vacate the judgment, and an affidavit (sworn statement) from the defendant that provides the necessary facts to support the defendant’s application. If the order to show cause is prepared by an attorney, it will also contain the legal arguments in support of the request to vacate the judgment.
The order to show cause is presented to a judge who will direct the manner in which the papers are to be served on the plaintiff and the plaintiff’s attorney. Usually, this will be done by certified mail or overnight delivery. The judge will also determine the “return date” of the order to show cause, that is, the date by which the plaintiff must file its reply to the defendant’s request. Certain courts and judges require that the parties appear in court on the return date.
After reviewing the papers submitted, and possibly hearing testimony
, the court will make a decision. If the court determines that the summons was not served properly, then the case will be dismissed. The plaintiff would then have to commence a new lawsuit. However, if the statute of limitations
had expired during the time that the case was pending, the defendant could raise the statute of limitations as an affirmative defense
and successfully defend a new lawsuit. Alternatively, if the court determines that service was proper, but that the defendant did not actually receive the summons, and has a meritorious defense, the defendant will be permitted to serve an answer and defend the action.
2. Ask the court to modify the execution to something more manageable. The debtor would have to show that the amount being deducted from their pay or taken from accounts was burdensome for the debtor or the debtor’s family. This procedure is not used very often.
3. File for bankruptcy. A Chapter 7 or Chapter 13 bankruptcy filing will stay enforcement of any judgments. Upon the filing of a bankruptcy petition, the garnishment must cease. (Income executions for support enforcement, however, will continue). Once the debtor receives a discharge in bankruptcy, the judgment may not be enforced against the debtor. In addition, if more than $600 was deducted from the debtor’s pay within the 90 days preceding the bankruptcy filing, this money may be recovered by the debtor under certain circumstances.
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