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Defending Creditor Lawsuits


By Frank J. Borgese, Esq., Partner at Graham & Borgese, LLP   Default Judgments- Every month in New York State there are tens of thousands of lawsuits filed by alleged creditors ("plaintiffs") against consumers ("defendants"). It is estimated that upwards of 90% or more of these lawsuits result in defaultjudgments for the plaintiffs (meaning the person who was sued did not even appear to defend the case). This is often due to the fact that the defendant was either unaware of the lawsuit, was given notice but ignored the process, or made a mistake in procedure that opened the door for the plaintiff’s attorneys to take advantage. Once a judgment is entered (whether it is by default or not), a plaintiff is empowered to institute measures such as wage garnishment, frozen bank accounts and/or liens on property, to force the defendant to pay. To help make sure you do not have a default judgment entered against you, it is important to educate yourself regarding the legal process and be proactive in defending your case or hiring an attorney to do so. With that in mind, below is a brief explanation of the process and issues that often arise for people being sued by a purported creditor. Service- In New York, a creditor has 120 days after a lawsuit is filed with the court to serve the defendant with a copy of the Summons & Complaint. These documents inform the defendant of the allegations being made against them, the amount of money being sought as "damages," explain how much time the defendant has to file a response (i.e. an "Answer"), and where to file this paperwork. How much time a person has to respond to the Complaint depends on how he/she was served. Ultimately, the deadline for filing an Answer can vary from court to court, but is explained at the bottom of the Summons. The deadline is always set from the date in which the defendant was served (this means that the dates on the paperwork really don’t affect your deadline at all). It’s also important to note that an Answer must be in writing and should be served upon the plaintiff and/or court to make sure that a default is not entered. Telephone calls with the plaintiff’s attorney after service do not constitute an Answer and do not stop the legal proceedings – even if you come to an agreement regarding settlement by phone. It is always a good idea to have agreements in writing. Ultimately, an Answer must set forth all legal defenses that the defendant believes should prevent a judgment from being entered (i.e. the filing was past the statute of limitations, it is not a valid debt, etc.). Stating only that you don’t have money to pay or that you incurred the bill because of an unexpected expense/event is not a legaldefense and will probably result in the plaintiff obtaining a judgment anyway. Thus, if you have any questions, you should probably consult with a local attorney for further information and guidance. Note: If someone is not served with a Summons & Complaint, and only learns of the judgment from an outside source, then it is likely in that person’s best interest to speak with an attorney to determine whether the judgment can be vacated (i.e. thrown out). What’s next?  Once an Answer is properly filed, both sides typically engage in "Discovery." This is a process whereby each side tries to gather information that can help their case. Often times, discovery takes the form of a list of questions that needs to be answered and/or a written request that certain types of evidence be produced. Everything must be answered truthfully and by a deadline (which will be set forth by the requests). If, however, the plaintiff feels as though they already have enough proof to win the case without engaging in discovery, they may file a motion to try and have a judgment entered. If such a motion is filed, then a reply needs to be drafted that challenges the plaintiff’s assertions and it again must be filed by a certain deadline, specified by the motion itself. Ultimately, throughout this process the parties can try to negotiate a settlement, but if the sides are unable to do so (and assuming the case hasn’t been decided by a motion) then the court will schedule a trial in which both sides must present their arguments/evidence. Conclusion-  It is easy to understand why the legal process can be difficult to understand and lead someone to feel overwhelmed. However, information empowers and it is extremely important to know that you are not alone and there are consumer law attorneys available to represent your interests and prevent injustices from occurring if you desire. If you would like to learn more about your rights, protections and even procedure, visit for more information.