A default judgment I never knew about
If a collector got a default judgment against you in New York and you were never properly served, you can ask the court that entered it to vacate it. CPLR 5015(a)(4) allows relief for lack of jurisdiction, which is what improper service means, and CPLR 317 lets a person who was not personally served defend within one year after learning of the judgment, up to five years after entry, if they did not receive notice in time and have a meritorious defense.
You found out when your bank account froze, or when a mortgage lender pulled your report. There is a judgment against you, entered years ago, in a case you never heard about. The court file has an affidavit saying someone handed the summons to you, or to a "relative," at an address you left long before.
A default judgment is not the end. New York gives you ways to reopen it, and the right one depends on how you were supposedly served.
How you can be sued without knowing
New York allows a summons to be served in several ways (CPLR 308):
- Personal delivery to you.
- Delivery to a person of suitable age and discretion at your actual place of business, dwelling place or usual place of abode, plus a mailing within 20 days.
- Affixing to your door, plus a mailing, but only if the first two could not be done with due diligence.
Each method depends on the right address and an honest affidavit. When either fails, the case can go to judgment without you. The Second Circuit's decision in Sykes v. Mel S. Harris & Associates described a debt buyer that filed 124,838 cases between 2006 and 2009, default judgments in 49,114 cases between 2007 and 2010, and "hundreds of instances" of process servers claiming to serve papers in multiple places at once. The settlement announced in 2015 was reported at $59 million and provided for about 192,000 default judgments to be transferred and potentially vacated. See the Sykes story.
Three routes to vacate
You ask the court that entered the judgment. The main grounds:
| Route | What you show | Time limit |
|---|---|---|
| CPLR 5015(a)(4): lack of jurisdiction | You were not properly served, so the court never had jurisdiction over you | None written into the statute |
| CPLR 317: not personally served | You were served other than by personal delivery, did not personally receive notice in time to defend, and have a meritorious defense | One year after you learn of the judgment, no more than five years after entry |
| CPLR 5015(a)(1): excusable default | A reasonable excuse for not answering in time | One year after service of the judgment with written notice of entry |
CPLR 5015(a)(3) adds another ground: fraud, misrepresentation or other misconduct of the other side. A false affidavit of service may fit there too.
What changed in 2022
The Consumer Credit Fairness Act added safeguards for consumer credit suits filed on or after May 7, 2022. The court clerk must mail you an additional notice of the suit, and no default judgment may be entered until 20 days after that mailing, or at all if the notice comes back undeliverable (CPLR 306-d). A plaintiff seeking a default judgment must file an affidavit that, after reasonable inquiry, it believes the limitations period has not expired (CPLR 3215(j)). If your judgment is newer, check the file for those papers.
Consumer credit suits must also be filed within three years (CPLR 214-i). A judgment on a debt that was already too old may give you a defense to raise once the default is vacated.
Claims against the collector
Getting a judgment on a false affidavit of service can be a deceptive or unfair practice under the FDCPA (15 U.S.C. §§ 1692e, 1692f) and N.Y. Gen. Bus. Law § 349. The FDCPA allows actual damages plus statutory damages of up to $1,000, and requires a company found liable to pay the consumer's reasonable attorney's fees and costs.
The FDCPA clock does not wait for you to find out
In Rotkiske v. Klemm, a man learned of a default judgment years later when he was denied a mortgage. The Supreme Court held that the one-year FDCPA deadline runs from the violation, not from discovery. Newer collection acts on the judgment, such as a fresh restraint, can carry their own dates.
If you are being sued on a new case now, do not ignore the papers. The answer deadline is short: in New York City Civil Court, 20 days after personal delivery, otherwise 30 days after proof of service is filed. Read sued by a debt collector.
What to do this week
- Get the court file. Find the index number on the restraint or credit report and pull the affidavit of service.
- Check the affidavit against your life. Where did you live on that date? Were you at work, traveling? Lease, pay stubs and travel records are evidence.
- Write down when you learned of the judgment. The CPLR 317 year runs from then.
- If money is frozen, return the bank's exemption forms within 20 days. See bank account frozen.
Sources: N.Y. CPLR 5015, 317, 308, 306-d, 3215(j), 214-i; N.Y. City Civ. Ct. Act § 402; Sykes v. Mel S. Harris & Assocs., No. 13-2742 (2d Cir. Feb. 10, 2015); ABA Journal, Nov. 16, 2015 (settlement report); Rotkiske v. Klemm, 589 U.S. 8 (2019); 15 U.S.C. §§ 1692e, 1692f, 1692k; N.Y. Gen. Bus. Law § 349.
Common questions
What is sewer service?
The name for a process server who does not actually deliver the summons but signs an affidavit saying it was served. In the Sykes case, the Second Circuit described hundreds of instances in which process servers claimed to be serving papers at multiple locations at the same time. Without real service, the court usually lacks jurisdiction over the defendant.
Is there a deadline to vacate a default judgment in New York?
It depends on the ground. A motion based on excusable default must be made within one year after you are served with a copy of the judgment with written notice of its entry (CPLR 5015(a)(1)). CPLR 317 allows one year after you learn of the judgment, but no more than five years after entry. The text of CPLR 5015(a)(4), lack of jurisdiction, sets no time limit, but acting quickly still matters.
Can I sue the collector over a judgment I was never served with?
Possibly, under the FDCPA and N.Y. Gen. Bus. Law 349. But the FDCPA's one-year deadline runs from the violation, not from when you found out, as the Supreme Court held in Rotkiske v. Klemm. Later collection acts, such as a new restraint or letter, may be separate violations with their own dates.
Tell us what they did.
One conversation with an attorney, in your language. We tell you which laws the collector or the credit bureau broke, which deadline runs first, and what to save this week. If it is not a case we can take, we say so and tell you where to go.
(718) 484-7510The FDCPA and the FCRA require a company found liable to pay the consumer’s reasonable attorney’s fees and costs. Our fee arrangement is confirmed in a written retainer before we begin. English, Russian and Spanish in-house; an interpreter for any other language.