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How do I vacate a default judgement that has been assigned

Resolved Question:

How do I vacate a default judgement that has been assigned to someone who has unclean hands on a related matter
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  RealEstateAnswer replied 1 year ago.
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good afternoon. I certainly understand the situation and your concern. In order to vacate a default judgment in New York, the defendant must make an application to the court that rendered the judgment. In Nassau and Suffolk counties, this will most likely be either the District Court or the Supreme Court. In Brooklyn, Queens or Manhattan, it will be in the New York City Civil Court or Supreme Court for the borough in which the defendant resides. 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.
Temporary Restraining Order - Orders to show cause to vacate default judgments in Suffolk County, Nassau County and New York City often contain a request for a temporary restraining order, known as a TRO. The purpose of a TRO is to prevent the plaintiff from enforcing its judgment pending the court’s decision. This may be very important in cases where the plaintiff is attempting to garnish a consumer’s wages or has restrained a bank account.
Traverse Hearing - In cases where the facts surrounding service of the summons are in dispute, the court will order that a traverse hearing be held. In a traverse hearing, the plaintiff’s process server must testify as to how the summons was served on the defendant. The defendant, and any witnesses called by the defendant, will also testify. After reviewing the papers submitted, and hearing the testimony (if a traverse hearing is held), 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.

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Customer: replied 1 year ago.
if the default isn't vacated is a defense of unclean hands in a releted matter an acceptable defense
Expert:  RealEstateAnswer replied 1 year ago.
It is a defense to raise but you first would have to get the default vacated and explain to the Judge why you failed to raise this defense at the start of the case and file an answer/defenses, when served with the complaint. An explanation needs to be given as to why the default was entered in the first place. If good cause can be shown, the Judge should vacate it since a case should be decided on the merits.
RealEstateAnswer, Lawyer
Category: Real Estate Law
Satisfied Customers: 17294
Experience: 8+ years in handling Leases, Landlord-Tenant, Foreclosures,Mortgages, and Eviction cases
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