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hi, I have filed a small claims case and was granted a default judgement on 1/23/09, I then filed an order to discover assets with a court date of 2/20/09, the defendants appeared in court and the judge asked them if they wanted to vacate the judement and they said yes, so I understand that they only had 30 days from the default judgement of 1/23 to file this motion, instead of a motion to vacate they filed an appearance on 2/20/09, to my understanding of the law (which is not much) this appearance filing does not do what they needed to do within the 30 day mark, correct? So do I need to re file a citation to discover assets,with a wage deduction, and/or a rule to show cause. I cannot afford to pay an attorney to file this for me, thank you

Submitted: 258 days and 18 hours ago.
Category: Legal
Value: $15
Status: AWAITING EXPERT REPLY
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Posted by NYcowgirlawyer 258 days and 9 hours ago.

Answer

Hello XXXXXXX:

 

Thank you for contacting Just Answer for assistance.

 

Before I answer your question, would you please tell me if the court did, in fact, vacate the default judgment? If so, did the court issue a written order which states this?

 

I'll get back to you after I receive this information.

 

Thank you.



Edited by NYcowgirlawyer on 3/9/2009 at 10:54 PM

Posted by NYcowgirlawyer 258 days and 9 hours ago.

Info Request

Sorry. I meant to hit "need info", not Answer.

256 days and 15 hours ago.

Reply

I actually served 3 individuals and the corporation just to cover my basis, I only dealt with 2 of the people a husband and wife but I did include the corporation and the president of the company. In January the judge did vacate the the default judgement of the president of the company without prejudice, he claimed he did not meet with me (which he did not) I still have the 2 defendants which needed to file a motion to vacate within the 30 days of the original court date when the judge granted me the default judgement on 1/23/09. We were in court on 2/20/09 because I filed a motion to discover assets, at that time when he told me that I was going to be paying him money for wasting his time, he filed an appearance and not an order to vacate the default judgement. I am waiting to see what my next move is.

256 days and 14 hours ago.

Reply

the court did vacate the judgement without prejudice on one individual the president of the company, but I still have the husband and wife who only filed the appearane in response to my default judgement. I filed claim against 3 individuals and the corporation to cover my basis

Accepted Answer

Hello XXXXXXX:

 

I apologize for the delay in answering your question, but my computer was being operated on (it lived).

 

Husband and wife defendants caught a break by being give the opportunity to file a motion to vacate which they did not do. Their notice of appearance in the case is premature. They have no standing to do this unless and until court grants the motion to vacate the default judgment. It appears they blew the deadline imposed by the court to do this.

 

Try filing a motion or order to show cause to enforce the default judgment and include your original request to discover assets. I wouldn't be surprised that a defendant would take advantage of this passage of time to change or move the assets to keep them out of reach of your judgment. But, this happens frequently and courts are well equipped to handle this type of situation.

 

I believe I have answered your question. If so, please click ACCEPT so that I will receive credit and payment for my time and effort on your behalf.

 

Good luck to you.

 

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Expert: NYcowgirlawyer
Pos. Feedback: 100.0 %
Accepts: 
Answered: 3/12/2009

Attorney

24 yrs. as trial and appellate lawyer in complex NY domestic relations. All areas of law tried.

255 days and 12 hours ago.

Reply

thanks will I be able to contact you dirctly after the next court date? I hope this will be the end but Im not going to hold ny breath

Posted by NYcowgirlawyer 255 days and 12 hours ago.

Answer

I'm glad I was helpful.

 

Yes, you contact me by going to the Just Answer site, and before you type in your question put: FOR COWGIRLAWYER ONLY. If I'm not online, the site moderator will send me an email to contact you.

 

Good luck.

255 days and 11 hours ago.

Reply

I am filling out the rule to show cause, I check off the box for hearing on citation to discover assets. Should I also re serve the defendants with the citation notice and the citation to discover assets again because they did not reply the first time, when we were in court they were still within the 30 days to file a motion to vacate the judgement.I need to have a sherriff serve them so I want to make the most of it. Also, can I file additional papers so that I can accomplish more and have the judge make a ruling for payment at the next court date, or what other papers do I need to file

Posted by NYcowgirlawyer 255 days and 11 hours ago.

Answer

To be safe, re-serve the citation notice and citation to discover assets. The judge is not likely to make a ruling on exact payment (I assume you mean when they should pay, how, interest, if any, etc.) because you already have a vailid default judgment (you told me this has not been vacated or set aside) which you can execute on any assets you discover.

 

You could also include a motion to strike the appearance filed by the defendants as being untimely.

 

Good luck.

 

 

255 days and 11 hours ago.

Reply

how do I execute, just saying that to the judge or filling out a form?

I have 2 copies of the certificate of attorney in citation proceedings to geve to tht ejudge with all of the filing fees on them.Can you think of any other forms or motions AI need to file? I will submit another payment to you on your response

Posted by NYcowgirlawyer 255 days and 10 hours ago.

Answer

I'll address several issues:

  1. Other forms or motions: I don't know where you live nor do I have access to the exact small claims forms you're using, so I can't say what additional forms you might need. You could check this out through the small claims clerk to be sure you're filing what you need. But, in my last reply, I did state that in your order to show cause, you could add a request for the court to strike the appearance that was filed by the defendants on 2/20 on the basis that it was untimely. The court should throw that out and let the default judgment stand.
  2. "To execute on a judgment" is a legal term which simply means to get the money you are owed according to the judgment. An example is a bank account. Let's say you discover the defendants have a bank account with X dollars (it doesn't have to have the entire amount you are owed). You have to follow the procedure in your state to "execute" on the bank account. Usually, that entails sending a court form to the bank with a copy of your judgment. But, you need to get the specifics in your state. If there are other assets, you then have to "execute" on those assets until the entire amount of the judgment is paid.
  3. Often, if a bank account is identified, or some other viable asset, the defendants will cough up the money so that you don't take their asset which creates all kinds of problems for them, especially if it's a bank account.

I hope this helps you out. Feel free to contact me again. A good recommendation to Just Answer would be appreciated.

 

Good luck.

254 days and 17 hours ago.

Reply

oops I think I screwed up I went to file the motion and re read the court doc from Febreuary 20. The judge wrote an order "plaintiff and defendants present, these 2 defendants moving to vacate default judgement and to appear and answer or otherwise plead. Defense motion these 2 defendants granted, to be done by 3/20/09 matter cont'd fir status to 4/3/09 9:00 am." So I know I have court date on the 3rd but did the judge grant them more time than the 30 days from the original filing date? I have no idea if I can file something now or if I have to wait until the 3rd, and what do I do then when they only filed the appearance. Sorry I need help..... Im in Illinois by the way, thank you

 

Posted by NYcowgirlawyer 250 days and 9 hours ago.

Info Request

Hi:

 

Do you still need help?

249 days and 19 hours ago.

Reply

Yes, in the above question to you I wrote what the judge ordered in court, and that a new court date on April 3 for statusbut also the March 20th date, can you still read all of our last conversation?March 12 3:46 I dint know what to do now thanks

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