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Have you been served with a summons and complaint (or summons and notice) by a creditor? If so, then time is of the essence. Typically, after you have been served, you have a certain amount of time to respond to the summons and complaint or notice with an answer. If you fail to respond within the allotted time, you risk the creditor obtaining a judgment by default, i.e. a "default judgment." This is a risk many defendants are unaware of.
A judgment entered against you can result in the creditor freezing bank accounts, repossessing a car, garnishing wages, or even foreclosing on a property. Legally, when a creditor institutes a lawsuit against you the creditor is required to notify you of the lawsuit by serving you in a particular manner. In addition, if the creditor obtains a judgment against you the creditor must provide notification of the judgment. If you have notification that a judgment was rendered against you, however, you did not get served and receive proper notification of the institution of the lawsuit, an attorney can use this fact in your favor when arguing to the court that the judgment should be vacated. There are a number of options for those that have had a judgment entered against them, all of which can be reviewed in a free consultation at our law firm.
If a creditor has instituted a lawsuit against you, you have the right to defend that lawsuit and prevent the rendering of a judgment in the creditor’s favor. Seeking professional legal advice from our firm is your best option for success.
A judgment is the final decision rendered by court in a lawsuit, criminal prosecution, or an appeal from a lower court’s judgment. There are various legal requirements that must be met in order for a judicial judgment to be valid. For example, it must be made by a competent judge or court at a time and place appointed by law in the required form. The judgment must also confine itself to the question raised before the court and cannot extend beyond it. If the judgment is appealed, the appellate court generally reviews the law applied by the lower court, and will not disturb the factual findings. The individual or entity that a money judgment is rendered against is called the "judgment debtor." The individual or entity that a money judgment is rendered in favor of is called the "judgment creditor." If the judgment debtor fails to pay the judgment, the judgment creditor may file a judgment lien, and consequently have the judgment debtor’s assets sold to pay off the judgment.
A default judgment is a judgment obtained without the defendant ever having appeared in court or filed any papers. Essentially, a default judgment is one that the party who instituted the lawsuit obtains by virtue of the other side never showing up (similar to a forfeit victory in sports).
The rate of default judgments in New York debt collection cases is extraordinarily high. One recent study of over 180,000 collection lawsuits in New York City found that the consumer did not appear in over 90% of these cases.
In debt collection cases, a default judgment in a lawsuit can provide debt collection agencies with an easy, uncontested victory for the amount of damages originally filed for in the complaint. Consequently, in order to facilitate this process, debt collection agencies have been known to conveniently fail to serve debtors with their lawsuit papers. This is often referred to as "sewer service." Default judgments obtained in this manner are an illegal debt collection tactic.
Freezing of Bank Accounts:
When a creditor is seeking payment on a debt, that creditor has the power to freeze the debtor's bank account. Once the creditor notifies the bank of their request, the account will immediately freeze without warning to the debtor. This means that whatever the amount of money that creditor chose to freeze in your bank account will be inaccessible. The creditor can freeze up to two times the amount of your debt, and can freeze any additional money that you deposit into your account afterwards. Unfortunately, if you share a joint account with a judgment debtor your funds can be frozen as well. Thus, it is recommended to not share an account with someone undergoing debt issues. Our firm will help you take the immediate action in order to remedy the situation. In cases where the freeze is made from a default judgment, there is a good chance we can reverse it, in turn, releasing your funds.
Repossession is where a lender or bank claims ownership to a piece of property that was pledged as collateral for a loan. Repossessions commonly occur due to non-payment of the loan. A creditor may also repossess property if they obtain a judgment. New York law provides that a lender who repossesses an automobile must give the borrower notice or the repossession. If the lender repossesses a vehicle, within 24 hours, the lender must personally notify the borrower or send the borrower a form of special-delivery mail informing the borrower of what occurred. If a creditor has failed to properly notify the borrower of the repossession in this way, the borrower may be able to fight the repossession. Many other grounds are available to fight repossession. Our firm can help you get the justice you deserve.
Breach of Peace:
A "breach of peace" occurs when a creditor uses physical force, or threats of force, while seizing your vehicle. Taking your car against your protest or removing it from a closed garage without your permission may also constitute a breach of peace. This is illegal and the creditor can face serious consequences. Aside from having to pay a general penalty, if any harm is done to you or your property the creditor may have to provide compensation for the damages. The creditor can also lose the right to collect a "deficiency judgment," which is the monetary difference between what you owe on your lone and what your creditor receives when reselling your vehicle.
Bank Freeze or frozen bank account: This occurs when a creditor gets the right to come after you for money deposited in a bank account that has your social security number on the account. Contact use RIGHT AWAY if this happens because you have limited time to take specific actions to reclaim those funds.
Wage garnishment is a legal procedure in which a person’s earnings are required by court order to be withheld by an employer for the payment of a debt. While this is often a creditor’s last resort, it can have a devastating impact on your finances. However, there are solutions. If your wages have been garnished you will have the opportunity to challenge the amount or assert exemptions. Nevertheless, you are in the best position to prevent a wage garnishment from occurring when you are initially served with the lawsuit. While the lawsuit is pending, creditors are often willing to negotiate payments and/or payment plans to resolve the debt. It is at this point when you may be able to reduce the amount owed and avoid garnishment.
Click here for more information about Wage Garnishments
Will Bankruptcy Get Rid of Lawsuit Judgments?
Find out if you can wipe out a lawsuit judgment in bankruptcy and what happens if the creditor has a lien against some of your property. If you are sued and a creditor gets a judgment against you, you may be able to discharge your personal liability on that judgment in a Chapter 7 bankruptcy. This will depend on whether the underlying debt is dischargeable (meaning you can wipe it out in bankruptcy) or non-dischargeable.
Even if you are able to discharge your personal obligation on that debt, the lien may survive the bankruptcy and remain attached to your property, including your house. Under certain circumstances, you may be able to avoid the lien in the bankruptcy, depending on exemptions you have available.
Is the Judgment for a Non-dischargeable Debt?
A good starting point in figuring out if you are still liable on the judgment is to ask whether the underlying debt is non-dischargeable. Certain debts are usually automatically non-dischargeable, including the following:
Child support or spousal support obligations, student loans, debts owed to government entities (fines, taxes, court costs, restitution in criminal cases, etc.) Bankruptcy post-petition HOA and condo fees, and death or injury caused by DUI.
If the basis of the judgment does not fall into any of the “automatic non-dischargeable” categories listed above, you may not be off the hook just yet. There are still other types of debts that may be eliminated from a discharge, if the creditor files an objection. The creditor must file an adversary proceeding in bankruptcy court, requesting that the court decide that the particular debt is non-dischargeable. If the judgment creditor files an objection to your discharge and proves the underlying debt to be any of the following types, it may not be dischargeable:
Injury caused by a willful or malicious act, such as assault, fraud used to obtain money, goods or services, such as lying on a credit application, or fraud committed while in a position of trust, such as embezzlement while acting as a trustee or guardian.
If the judgment does not relate to these categories, and the creditor doesn't object to discharge, then you can discharge the lawsuit judgment in Chapter 7 bankruptcy.
Obtaining a bankruptcy discharge may give you little comfort if the creditor's lien can still attach to your assets, such as your house. There is a way, however, that you can get rid of the judgment lien in your bankruptcy. It is called lien avoidance. Provided that you did not give the creditor a consent judgment, you may be able to remove that lien from your home, car, and any other asset that you could otherwise exempt in your Chapter 7 bankruptcy.
To qualify for lien avoidance, you must prove the following three conditions:
The lien came from a money judgment issued against you (you did not consent to it as part of a settlement,) You have equity in property that you can claim an exemption against, and the judgment lien eats up some or all of the equity that you could have exempted.
To avoid a lien, you have to follow bankruptcy procedure
and act quickly. This includes making a claim that your property is exempt on
your Statement of Intention and filing a timely motion with the court.
How to erase judgments on credit reports:
Credit reporting can be very confusing for consumers. Many of us often wonder: How do the three major credit bureaus -- Equifax, Experian and TransUnion -- gather the information in our credit reports, and why do they sometimes disagree?
If you have judgments for unpaid debts, these are typically noted in your credit report and can do serious damage to your credit score. You can get hurt twice. Once for the judgment. Once for the past due debt. Both hurt you on your credit report for up to seven years. There are a number of situations when a consumer can successfully get the credit reporting bureaus to delete the judgments from their reports, such as proving the debt belonged to someone else, was already paid or that the statute of limitations has already expired. If you complain to the credit bureau, they might respond saying that the debt "remains" or is "verified" (which means the bureau verified that it belongs to you.) Below are some situations which would be helpful to you in resolving the problem.
The debt belongs to someone else. Sometimes courts make mistakes. Fathers that have the same name as their own son often are impacted by each other. If you can prove you're not the debtor then you can get the entry removed.
The debt is already paid. If you can prove you made the payments, this could also help you get the entry removed.
The debt is old. Judgments and unpaid debts stay on a person's credit report for about seven years and six months. Older debts MUST be removed by the credit bureaus - but often you must ask for the removal.
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If the judgment truly is NOT your debt:
Pay a lawyer an up-front fee to make a motion to the court, and to appear, to argue that the debt is not your debt. The motion can ask the judge to have the creditor reimburse you for your legal fees when your motion is granted - note that this is entirely up to the judge.
If the judgment truly is your debt but you disagree with the sum the creditor is after:
Hire a lawyer to perform an analysis on the debt to calculate the sum. Note that this analysis would not be accurate if you do not have the relevant information such as interest rate, how old is the debt, etc. Also, sometimes a creditor changes the interest rate at some point in time which complicates the calculation. Even if the balance is off, you're still going to need to deal with the problem regardless of the sum. See below.
If any part of the judgment truly is your debt:
Hire a lawyer to negotiate the debt down to a lower settlement sum.
Or, consider talking to the lawyer about a bankruptcy if you have a lot of debts.
What if I wasn't served court papers, and I later found out there is a default judgment?
Not being served court papers does not necessarily make the judgment invalid. Here is one example: If you moved, and a notice was sent to your OLD address about a law suit, obviously you would not have received the court notice. However, a creditor is allowed to say to the court that they gave notice to the last known address. Since you didn't get the notice, you didn't even know to go to court, so the creditor receives a default judgment against you.
Note that NOT receiving a notice MIGHT give you a basis to argue that you deserve your day in court on the matter. Keep in mind that even if you were given a court date, you'd still need to prove that the debt was NOT your debt when you go to court. This is where a lawyer can help.
Once a judgment is obtained, the creditor can file paperwork to try to freeze your bank account and/or garnish your wages at work. Any financial account, with your social security number on it, is at risk. This includes joint accounts with other people. For example, if you hold a joint bank account with someone, even if all the money in the bank belongs to the other person, that account can still be frozen.
Judgment is not spelled "Judgement", the title of this web page was intentionally made Judgement due to the common misspelling of Judgement in place of Judgment.
Ronald S. Cook is a Bankruptcy Attorney that proudly serves New York City, Manhattan, Nassau County and Suffolk
County on Long Island, New York, NY. We offer reasonable rates and payment plans.
CALL US TODAY TO DISCUSS YOUR JUDGMENT!