Vacating a NJ Default Judgment

Have you been sued by a creditor such as Discover Bank, Midland Funding LLC, or a hospital/health care provider?

Did you forget to Answer the Complaint, or did you never receive a copy of the Complaint in the first place?

A Default Judgment in the NJ Special Civil Part can have serious consequences for your financial future. Here’s how the process works:

1. A creditor (such as a bank, credit card company, hospital, etc) files a Complaint against you in NJ Special Civil Part, asking for a specific amount of money. The Special Civil Part “serves” the complaint upon you at the address provided by the creditor, by both regular and certified mail, return receipt requested.

(*NOTE that I have had clients who refused to sign for the certified mail, suspecting it was a lawsuit. These clients wrongly believed that failure to sign for the certified mail meant that they were “dodging” or avoiding the suit.

Sadly, it doesn’t work that way. If you fail to sign for the certified mail copy, but “accept” the copy left in your mailbox via regular mail, you are considered “served” under NJ Special Civil Part rules. Only if BOTH the regular mail and certified mail copies are returned marked “undelivered” or “return to sender” to the Court is service considered incomplete.

You have 35 days from the date stamped in the front right corner of the Summons to file your Answer to the Complaint, or else the Special Civil Part will “automatically” declare you in default. This mean that if you try to submit your Answer after the 35 day deadline, the Court will not accept it, as you (the Defendant) are already in default.

Within a week or so of your default, the creditor’s attorney will likely file for “Entry of the Default Judgment.” This requires the creditor to fill out a short form with the Court which states the amount the creditor claims you owe them (they may also attach bills or invoices etc by way of proof of the amount claimed you owe).

The Court is unlikely to do much verification or “investigation” of the paperwork the creditor submits to “prove” the default amount, since proving (or disproving) the claimed amount was your job as the defendant (which, by defaulting and failing to Answer, you obviously failed to do). Oliver Wendless Holmes once quipped that “a man who sleeps on his rights will not be heard to complain if, after a while, the law follows his example.”

Once the creditor has the judgment entered by the Court, they can move forward with levying you bank accounts, getting liens against your property, applying to garnish 10% of your gross wages, and other very unpleasant things.

So is there anything you can do?

First, you need to move quickly! The moment you receive paperwork that a default has been entered, a Motion to Vacate Default must be prepared and served on both the Court and your adversary. Enclosed with the Motion to Vacate must also be:

1. A copy of your proposed Answer to the Complaint (along with your affirmative defenses),

2. The $15 filing fee for the Answer,

3. A Certification of Mailing,

3. Your Motion to Vacate Default, which should state in an affirmation signed by you:

a- Valid reasons why you failed to Answer the Complaint within the 35 days time period prescribe by the Court Rules, (i.e, illness, out of state, roommate stole/lost your mail, you recently moved, etc).

b- requesting the Court to vacate the default and allow you to submit your Answer.

Typically, Motions to Vacate Default are granted quite “liberally” by the Court. However, I have had clients come to me with motions to vacate they have themselves prepared and had rejected by the Court. Common mistakes include: failing to enclose a copy of the proposed Answer, failing to notify the other party, waiting too long (with Motion to Vacate, the sooner you file, the better). I have been able to “fix” these issues in many cases and, upon re-submission, have their Motion to Vacate granted by the Court.

On the general theme of New Jersey Special Civil Part practice, here are some basic things to bear in mind:

1. Special Civil Part is among the busiest departments in the entire NJ Court System. Some of the populated North NJ counties like Bergen, Essex & Passaic literally have thousands of these suits filed per week. I like to call it “small claims court on steroids.” Most Special Civil Part cases are filed by law firms/attorneys who specialize in collections practice. The reason they bring these cases in NJ Special Civil as opposed to NJ Small Claims Court (even when they are suing you for 200 or 300 bucks) is because in Special Civil Part, the plaintiff’s attorney need not appear in Court to obtain a default. If the Defendant (you) fails to answer the Complaint within 35 days, the Court itself merely marks the case in default. Thus in a typical default case, the attorney filing the suit likely never steps foot inside the courthouse!

2. Since the lawyers filing these suits typically specialize/concentrate on this area of law (i.e, collections), they are naturally experts at it. These attorneys understand every nuance of practice, understand how to get documents submitted into evidence, keep up with all changes in Court rules, and have large, well-trained staffs cranking out their paperwork by the bushel. These attorneys also typically have a lot of “skin in the game,” since often they retain one-third (33%) of whatever they recover from you as their legal fee. The more they squeeze out of you, the more THEY get paid.

3. Given that the Special Civil part is so busy, the judges typically have little patience for pro-se litigants who submit incomplete paperwork, are unprepared for trial, or fail to follow Court rules. The NJ Rules of Evidence can be extremely complicated, and the “slam-dunk” document or exhibit that you believe will win your case may not even be considered by the Judge if you can’t get it into evidence. And as discussed above, the collection attorney you’re up against does this for a living, 40 to 50 hours per week. While this lawsuit may be your first case, the attorney you’re up against has handled hundreds (or thousands) of cases just like yours. Who do you think stands a better chance at winning?

Although the Internet is a tremendous resource for legal information and forms, it is no substitute for the advice and representation of a licensed NJ collections defense attorney. “Boilerplate” forms and information from legal websites may not address or cover all of the issues in your case. A valid defense may exist in your case that could get the entire lawsuit dismissed, or reduce the amount you have to pay by 50% or more.

Fortunately, you don’t have to “go it alone.” Representation is likely much more affordable than you think. Our fees for limited representation in NJ Special Civil Part cases start at just $375. Call us TODAY at 908-782-5313 to discuss you case.


No Comments Yet.

Leave a comment