Motion to Vacate Default Judgment (Debt) - New York

[____________] COURT OF THE STATE OF NEW YORK

COUNTY OF [____________]

Index No. [____________]

ORDER TO SHOW CAUSE / MOTION TO VACATE DEFAULT JUDGMENT (CPLR 5015)

Filed Pursuant to C.P.L.R. 5015(a)(1), 5015(a)(4), and 317

Defendant, [____________] ("Defendant"), appearing [☐ pro se / ☐ by and through undersigned counsel], respectfully moves this Court for an order, pursuant to C.P.L.R. 5015(a) and 317, vacating the default judgment entered against Defendant in this action on [__/__/____], restoring this action to the calendar, deeming the annexed proposed Answer served, and staying all enforcement of the judgment pending determination of this motion. In support, Defendant states as follows:

I. INTRODUCTION AND BASIS FOR RELIEF

1. This is a debt-collection action in which Plaintiff [☐ is a debt buyer / ☐ is a collection agency / ☐ claims to be the original creditor] seeks to collect an alleged consumer debt. A default judgment was entered against Defendant on [__/__/____] in the amount of $[____________], plus interest, costs, and/or fees.

2. Defendant was not personally served and/or did not receive notice of this action in time to defend, has one or more potentially meritorious defenses to the alleged debt, and brings this motion promptly upon learning of the judgment. For the reasons below, the default judgment should be vacated and Defendant permitted to defend on the merits.

3. New York public policy strongly favors the resolution of disputes on the merits rather than by default. Where a defendant demonstrates a lack of personal jurisdiction under C.P.L.R. 5015(a)(4), "the default must be vacated . . . and the movant is relieved of any obligation to demonstrate a reasonable excuse for the default and a potentially meritorious defense." Wells Fargo Bank, N.A. v. Spaulding, 177 A.D.3d 817 (2d Dep't 2019).

II. IDENTIFICATION OF THE DEFAULT JUDGMENT

4. Date of judgment. The default judgment was entered on [__/__/____].

5. Amount. The judgment is in the amount of $[____________], consisting of [principal $[____], interest $[____], attorney's fees $[____], costs/disbursements $[____]].

6. How and when Defendant learned of the judgment. Defendant first learned of the default judgment on [__/__/____] by the following means:

☐ A restraining notice or information subpoena served on Defendant's bank (C.P.L.R. 5222)
☐ A bank levy / account freeze or marshal's/sheriff's execution
☐ An income execution (wage garnishment) served on Defendant's employer (C.P.L.R. 5231)
☐ A credit report entry
☐ Other: [____________]

7. Was a copy of the judgment with notice of entry ever served on Defendant? ☐ No — never served / ☐ Yes, on [__/__/____].

8. Defendant brings this motion [____] days/months after first learning of the judgment, which is within the applicable period under [☐ C.P.L.R. 5015(a)(1) (within 1 year of service of the judgment with notice of entry) / ☐ C.P.L.R. 5015(a)(4) (no time limit) / ☐ C.P.L.R. 317 (within 1 year of knowledge of entry; not more than 5 years after entry)].

III. LEGAL STANDARD

9. C.P.L.R. 5015(a)(1) — excusable default. The court that rendered a judgment may relieve a party from it on the ground of "excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party." To vacate under this subdivision, the movant must show (a) a reasonable excuse for the default and (b) a potentially meritorious defense to the action.

10. C.P.L.R. 5015(a)(4) — lack of jurisdiction. The court may relieve a party from a judgment "upon the ground of . . . lack of jurisdiction to render the judgment or order." A court acquires personal jurisdiction only through valid service of process; where service was defective, "all subsequent proceedings are rendered null and void." A judgment entered without personal jurisdiction must be vacated at any time, and the movant need not show a reasonable excuse or a meritorious defense. A process server's affidavit of service raises a presumption of proper service, but "a sworn denial containing a detailed and specific contradiction of the allegations in the process server's affidavit will defeat the presumption."

11. C.P.L.R. 317 — summons not personally delivered. A person "served with a summons other than by personal delivery" who does not appear "may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry," upon a finding that the defendant "did not personally receive notice of the summons in time to defend and has a meritorious defense." Section 317 does not require a "reasonable excuse," making it a powerful alternative where service was made by a method other than personal delivery (e.g., "deliver-and-mail" or "affix-and-mail" substituted service under C.P.L.R. 308).

12. Consumer-credit default judgments require heightened proof. In an action arising out of a consumer credit transaction, an application for a default judgment under C.P.L.R. 3215 must be supported by the affirmations and proof required by the Consumer Credit Fairness Act, including proof of the debt, ownership, and proper additional notice. A default judgment entered without that proof is subject to vacatur.

IV. GROUNDS FOR VACATING THE JUDGMENT

☐ A. Lack of personal jurisdiction — defective or no service (C.P.L.R. 5015(a)(4)). Defendant was never validly served with the summons and complaint as required by C.P.L.R. 308. Specifically: [describe — e.g., "Defendant did not reside at the address where service was attempted," "the affidavit reflects 'delivery' to a person who does not exist or was never present," "no copy was mailed or affixed as required," "Defendant first learned of the suit only through the bank restraint"]. Because the Court lacked personal jurisdiction, the judgment is a nullity and must be vacated. No reasonable excuse or meritorious defense need be shown.

☐ B. Defense permitted under C.P.L.R. 317. Defendant was served by a method other than personal delivery, did not personally receive notice of the summons in time to defend, did not appear, and has a meritorious defense. This motion is made within one year after Defendant obtained knowledge of entry of the judgment and within five years after entry. C.P.L.R. 317.

☐ C. Excusable default (C.P.L.R. 5015(a)(1)). Defendant has a reasonable excuse for the default, in that: [describe — e.g., "Defendant did not receive the papers," "serious illness or medical emergency (documented)," "an acute family emergency," "incarceration," "a misdirected court notice or clerk error," "Defendant reasonably believed the matter had been disputed/resolved with the collector"]. This motion is made within one year after service upon Defendant of a copy of the judgment with written notice of entry, and Defendant has a meritorious defense (see Section V).

☐ D. Defendant has a meritorious defense (see Section V).

☐ E. Fraud, misrepresentation, or other misconduct (C.P.L.R. 5015(a)(3)). The judgment was obtained through fraud, misrepresentation, or misconduct by Plaintiff or its agents, including [describe — e.g., "a false affidavit of service / 'sewer service,'" "a robo-signed affidavit of merit," "misrepresentation of the amount owed," "concealment of the lack of any assignment"].

☐ F. Newly discovered evidence (C.P.L.R. 5015(a)(2)). Defendant has discovered evidence that, if introduced at trial, would probably have produced a different result and could not have been discovered earlier with due diligence, namely: [describe].

V. DEFENDANT HAS A MERITORIOUS DEFENSE

13. Defendant is prepared to present one or more potentially meritorious defenses that, if proven, would defeat Plaintiff's claim in whole or in part:

☐ Statute of limitations (Consumer Credit Fairness Act). Because this action arises out of a consumer credit transaction, it is governed by the three (3) year limitations period of C.P.L.R. 214-i (eff. April 7, 2022); the debt accrued more than three years before this action was commenced. Under the CCFA, a later payment, written or oral affirmation, or other activity does not revive or extend an expired period. [Business debts outside the CCFA remain subject to the 6-year period under C.P.L.R. 213(2); confirm characterization.]

☐ Not the debtor / mistaken identity / identity theft. Defendant is not the person who incurred the alleged debt and/or the account was opened or used as a result of identity theft. [Describe; attach FTC Identity Theft Report / police report as Exhibit [__].]

☐ Wrong amount. The amount of the judgment is incorrect, inflated, or includes unauthorized interest, fees, or charges. The correct balance, if any, is $[____________].

☐ Debt paid, settled, or discharged. The alleged debt was paid, settled, or discharged (including by discharge in bankruptcy on [__/__/____], Case No. [____________]) and is not owed.

☐ Plaintiff lacks standing / no chain of assignment. Plaintiff is not the original creditor and has not proven a complete, unbroken chain of assignment specifically identifying Defendant's account. Plaintiff is not the real party in interest entitled to enforce the alleged debt.

☐ Failure to comply with C.P.L.R. 3016(j) / 3215 (consumer credit pleading and default proof). Plaintiff failed to satisfy the heightened pleading and attachment requirements (C.P.L.R. 3016(j)) and/or the affirmation and chain-of-title proof required to obtain a default judgment in a consumer credit action (C.P.L.R. 3215).

☐ Potential separate FDCPA claim—not by itself a defense that the debt is invalid. If a qualifying debt collector failed to provide the notice or verification required by 15 U.S.C. § 1692g, Defendant may have a separate civil claim under 15 U.S.C. § 1692k. A formal pleading is not an “initial communication” under § 1692g(d). Plead such a claim only if procedurally permitted, and evaluate any state-law issue separately.

☐ Other meritorious defense: [____________]

14. These defenses are substantiated by the facts set forth in Defendant's Affidavit, below, and the attached exhibits, and warrant restoration of this action to the merits.

VI. DEFENDANT'S AFFIDAVIT

STATE OF NEW YORK )
COUNTY OF [____________] ) ss.:

[____________], being duly sworn, deposes and says:

1. I am the Defendant in this action. I am over 18 years of age and competent to make this affidavit, which I make on personal knowledge.

2. I was never validly served with the summons and complaint in this case, and I did not personally receive notice of this lawsuit in time to defend it. [State the facts: where I lived and worked on the date of attempted service; whether I received the papers; who, if anyone, was served and whether they had any connection to me; how I actually learned of the lawsuit.]

3. I first learned that a judgment had been entered against me on [__/__/____], when [describe — e.g., "my bank account was restrained" / "my wages were garnished"].

4. [If applicable under 5015(a)(1):] My failure to appear was the result of [state the reasonable excuse], and not any intentional disregard of the Court.

5. I have a meritorious defense to Plaintiff's claim, namely: [state the facts supporting the defense(s) checked above — e.g., the date of last payment showing the claim is time-barred, that the account is not mine, that the amount is wrong, that the debt was discharged in bankruptcy, that Plaintiff has shown no assignment of my account].

6. I respectfully ask the Court to vacate the default judgment, permit me to defend on the merits, and stay all enforcement in the meantime.

_______________________________________
[____________], Defendant

Sworn to before me this [____] day of [____________], 20[____].

_______________________________________
Notary Public
My commission expires: [__/__/____]

VII. REQUEST TO STAY ENFORCEMENT (RESTRAINING NOTICE / GARNISHMENT)

15. Defendant requests that the Court stay all enforcement of the judgment — including any restraining notice, bank levy, income execution (wage garnishment), and marshal's or sheriff's execution — pending determination of this motion. C.P.L.R. 2201, 5519. Because this relief requires an interim stay, Defendant respectfully requests that the Court sign the accompanying Order to Show Cause containing a temporary restraint.

16. Absent a stay, Defendant faces immediate and irreparable harm from the restraint or garnishment of wages or funds — including funds that may be exempt from enforcement (e.g., Social Security, SSI, veterans', and other statutorily exempt income under C.P.L.R. 5205 and the Exempt Income Protection Act) — that Defendant needs for basic living expenses, even though the underlying judgment is subject to being vacated.

17. Defendant further requests that any funds already restrained or levied be held by the garnishee, marshal, sheriff, or the Court, and not turned over to Plaintiff, until this motion is decided.

VIII. RELIEF REQUESTED

WHEREFORE, Defendant respectfully requests that the Court enter an order:

A. VACATING the default judgment entered on [__/__/____], pursuant to C.P.L.R. 5015(a) and/or 317;

B. STAYING all enforcement of the judgment — including any restraining notice, levy, income execution, and execution — pending determination of this motion, and directing that any restrained or levied funds be held and not turned over to Plaintiff;

C. VACATING or QUASHING any outstanding restraining notice, income execution, or execution issued on the judgment;

D. DEEMING the annexed proposed Answer served and restoring this action to the calendar, with leave to defend on the merits;

E. Setting the matter down for a traverse hearing on the issue of service, if the Court finds a factual dispute; and

F. Granting such other and further relief as the Court deems just and proper.

IX. PROPOSED ORDER

A proposed Order (and, where interim relief is sought, a proposed Order to Show Cause with temporary restraint) is submitted with this motion for the Court's consideration.

[PROPOSED] ORDER

Upon the annexed affidavit of [____________], sworn to [__/__/____], the proposed Answer, and the papers submitted, and upon due deliberation, it is

ORDERED that Defendant's motion is GRANTED; and it is further

ORDERED that the default judgment entered on [__/__/____] under Index No. [____________] is VACATED; and it is further

ORDERED that all enforcement of the judgment — including any restraining notice, levy, income execution, and execution — is VACATED and STAYED, and any restrained or levied funds shall be released/returned to Defendant; and it is further

ORDERED that the annexed Answer is deemed served and this action is restored to the calendar.

Dated: [____________], New York
_________________________________
J.S.C. / J.C.C.

X. SIGNATURE

Dated: [____________], New York
[__/__/____]

/s/ [____________________________________]
[____________________________________]
☐ Defendant, pro se ☐ Attorney for Defendant
[Firm Name, if attorney]
[Street Address]
[City], New York [____]
Telephone: ([____]) [____]-[________]
Email: [____________________________________]

XI. AFFIRMATION / CERTIFICATE OF SERVICE

I certify that on [__/__/____] I served a true and correct copy of the foregoing Motion to Vacate Default Judgment, the supporting Affidavit, the proposed Answer, and the proposed Order [☐ and Order to Show Cause as directed by the Court] upon Plaintiff's counsel of record (or upon Plaintiff, if unrepresented) pursuant to C.P.L.R. 2103, by the following method:

☐ NYSCEF electronic filing (notice to all counsel of record)
☐ U.S. First-Class Mail, postage prepaid
☐ Hand Delivery
☐ As directed in the Order to Show Cause
☐ Email (by agreement / where permitted)

Addressed to:

[____________________________________]
[____________________________________]
[____________________________________]

/s/ [____________________________________]
[____________________________________]

NEW YORK PRACTICE NOTES

• Choose the right vehicle and deadline. C.P.L.R. 5015(a)(1) (excusable default): within 1 year after service of a copy of the judgment with written notice of entry; requires a reasonable excuse AND a potentially meritorious defense. C.P.L.R. 5015(a)(4) (lack of jurisdiction): no time limit; a judgment without personal jurisdiction is a nullity and must be vacated, with no excuse or meritorious defense required. C.P.L.R. 317 (service other than personal delivery): within 1 year of knowledge of entry, but no more than 5 years after entry; requires lack of actual notice in time to defend AND a meritorious defense, but no reasonable excuse.
• Bring it by Order to Show Cause when you need an interim stay of a restraining notice, income execution, or levy. The OSC can contain a temporary restraint pending the hearing.
• Defeat the process server's presumption with specifics. A detailed, sworn denial — stating where you lived, that you did not receive the papers, and that the person allegedly served does not exist or was not present — can rebut the affidavit of service and entitle you to a traverse hearing.
• Exempt funds. Social Security, SSI, veterans', unemployment, and similar income is exempt (C.P.L.R. 5205; Exempt Income Protection Act). Seek release of restrained exempt funds even apart from vacatur.
• Consumer Credit Fairness Act. Default judgments in consumer credit actions require specified affirmations and chain-of-title proof under C.P.L.R. 3215; the limitations period is 3 years (C.P.L.R. 214-i) and an expired period is not revived by later payment. Verify the transaction is "consumer credit."
• Courts: Supreme Court (general jurisdiction); Civil Court of the City of New York (up to $50,000); District Court (Nassau/Suffolk); City/Town/Village Courts. Move in the court that entered the judgment.

Sources and References

• N.Y. C.P.L.R. 5015 (relief from judgment or order): https://law.justia.com/codes/new-york/cvp/article-50/r5015/
• N.Y. C.P.L.R. 317 (defense by person to whom summons not personally delivered): https://codes.findlaw.com/ny/civil-practice-law-and-rules/cvp-sect-317/
• N.Y. C.P.L.R. 3215 (default judgment; consumer credit affirmations): https://www.nysenate.gov/legislation/laws/CVP/3215
• N.Y. C.P.L.R. 308 (personal service upon a natural person): https://www.nysenate.gov/legislation/laws/CVP/308
• N.Y. C.P.L.R. 5222 (restraining notice): https://www.nysenate.gov/legislation/laws/CVP/5222
• N.Y. C.P.L.R. 214-i (3-year consumer credit limitations): https://law.justia.com/codes/new-york/cvp/article-2/214-i/
• Wells Fargo Bank, N.A. v. Spaulding, 177 A.D.3d 817 (2d Dep't 2019) — no excuse/merit required under 5015(a)(4).
• New York Courts — Consumer Credit Reform (CCFA forms and notices): https://www.nycourts.gov/consumer-credit-reform
• Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.: https://www.ftc.gov/legal-library/browse/rules/fair-debt-collection-practices-act-text
• CFPB — time-barred debt: https://www.consumerfinance.gov/ask-cfpb/can-debt-collectors-collect-a-debt-thats-several-years-old-en-1423/