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Application for Default Judgment in the State of New York - Civil Case

State:
New York
Control #:
NY-01537BG
Format:
PDF
Instant download

Description

Default Judgment.

(a) Default and entry. When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him. If the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default. The clerk, upon submission of the requisite proof, shall enter judgment for the amount demanded.


(f) Proof. On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316 of this chapter, and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party.


3. (i) When a default judgment based upon nonappearance is sought against a natural person in an action based upon nonpayment of a contractual obligation an affidavit shall be submitted that additional notice has been given by or on behalf of the plaintiff at least twenty days before the entry of such judgment, by mailing a copy of the summons by first-class mail to the defendant at his place of residence in an envelope bearing the legend "personal and confidential" and not indicating on the outside of the envelope that the communication is from an attorney or concerns an alleged debt.

Key Concepts & Definitions

Default Judgment: A legal decision made by a court in favor of one party due to the failure of the other party to take action, such as responding to a lawsuit. Application for Default Judgment: A formal request made to the court to enter a default judgment when the opposing party does not respond or appear in court.

Step-by-Step Guide

  1. Check Local Court Rules: Review the rules of the judicial branch in your state, focusing on the specific requirements for default judgments.
  2. Prepare Your Request: Draft your application or request for a default judgment, often termed a 'request entry' or 'enter default' in court documents.
  3. File the Application: Submit your application to the court. This should include all required evidence and documentation to support the request for a default judgment.
  4. Notice of Entry: Notify the other party of the entry default, if required by your state's law.
  5. Attend the Hearing: Some states require a brief hearing before a default judgment is granted. Be prepared to present your case.
  6. Obtain Judgment: If the court approves your request, the default judgment will be entered.

Risk Analysis

  • Potential for Appeal: There is always a risk that the defaulted party might appeal the judgment if they later choose to challenge the decision.
  • Incorrect Filing: Errors in the application can delay or void the judgment.
  • Compliance Risks: Failing to adhere to state laws and regulations could result in legal penalties or the invalidation of the judgment.

Key Takeaways

Effective January: Be aware of any changes in state laws beginning January as these could affect the procedure and requirements for filing a default judgment. Ask Default: It's crucial to understand the process and use the correct terminology when interacting with court personnel regarding your case.

Best Practices

  • Consult with a Lawyer: To ensure correctness in the application process and compliance with local law, consulting a legal expert is advisable.
  • Thorough Documentation: Maintain all paperwork and evidence related to the case systematically. This preparation is crucial for both the request and any potential future disputes.
  • Timely Actions: Respect all deadlines and procedural timelines to avoid the risk of your application being dismissed.

Common Mistakes & How to Avoid Them

  • Misunderstanding State Laws: Research and understand your state's specific requirements for default judgments to avoid dismissal of your application.
  • Failing to Notify the Other Party: Always ensure proper and timely notification is given to the defaulting party to avoid issues with your judgment.

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FAQ

The danger of allowing a default judgment against you is once this occurs the debt buyer can garnish your wages and your bank accounts.If you don't submit a written answer to the lawsuit the court can enter a default judgment giving the debt buyer everything they are asking for.

In order to start enforcing a judgment, the judgment must be entered. Entry occurs after the clerk of the court signs and files the judgment. If you appeared in person (without an attorney) and you are the winner, you may ask the clerk to prepare and enter (record) a judgment in your favor.

Step 1: Make Sure You've Met the Requirements for a Default. Step 2: Decide How You Wish to Proceed. Step 3: Complete the Necessary Forms. Step 4: Complete Your Declaration in Support of Default Judgment. Step 5: Calculate Prejudgment Interest, if Appropriate. Step 6: Copy and Assemble Your Documents.

Default judgment is a binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law.

In most cases, however, default judgment can be obtained through an administrative process, simply by filing a request with the court, and even where an application is required it can in some circumstances be made without notice to the defendant.

Generally, if a defendant fails to respond to a complaint you can get a default judgment after 45 days. However, the court system is very slow these days and it can take several months to get the court to issue the default judgment.

Default judgments happen when you don't respond to a lawsuit often from a debt collector and a judge resolves the case without hearing your side. In effect, you're found guilty because you never entered a defense. Default judgments are sometimes called automatic judgments because of how fast they can happen.

When a default is entered, the party who requested the entry of default must obtain a default judgment against the defaulting party within 45 days after the default was entered, unless the court has granted an extension of time.

A very important fact you should keep in mind is that California courts do impose a timeline for seeking entry of a default judgment. Specifically, a request for entry of default must be filed within 10 days following a defendant's failure to timely file and serve a responsive pleading.

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Application for Default Judgment in the State of New York - Civil Case