Thinking about domesticating your out-of-state judgment in New York? If the out-of-state judgment was obtained on default, you may be concerned that moving to domesticate the judgment will lead the debtor to attempt to claim affirmative defenses. Can a previously defaulting defendant interpose an answer in a debt collection action that seeks to domesticate an out-of-state default judgment? And, if so, which defenses can they claim?
New York does not recognize judgments obtained in another state due to a defendant’s non-appearance. In order to domesticate a default judgment in New York, an action must be brought on the underlying judgment. The way to proceed is to file a lawsuit in New York pursuant to CPLR 5406 in the form of a summons and complaint.
For example, if a $100,000 judgment was entered on August 5, 2023, in the Superior Court of California and you want to have that judgment entered here, you will need to submit a complaint with the following:
- The parties’ names
- Date of the judgment
- Venue and state where the judgment was entered
- The entry amount
- An “exemplified copy” of the judgment
An exemplified copy of a judgment typically has three signatures in front of the copy of the judgment. The first is usually the clerk of the original court, certifying that after comparing the copy of the judgment, it is the same as the original judgment entered in that court. The second signature is that of a judge in the out-of-state court, stating that the clerk who certified the copy of the judgment was a qualified clerk of the court and that their signature was authentic. Finally, the third signature is that of the clerk of the court stating that the judge who gave the previous signature is a qualified judge in that court and that the signature is authentic.
New York requires that you file the exemplified copy of a judgment entered in another state within 90 days of the exemplification. Otherwise, the exemplification will be deemed “stale” and you will need to obtain a new exemplified copy of the judgment.
Defenses Allowed When Domesticating an Out-of-State Default Judgment
Once the summons and complaint is served, the defendant may file an answer to the complaint denying the allegations. The defendant may try to interpose allegations and defenses attacking the merits of the underlying judgment, but the court is not permitted to consider them. The only real review that the court may have is determining whether:
- The out-of-state court had jurisdiction over the defendant,
- The defendant was properly served in the original state
- The defendant was afforded due process in the original action
The most common defense interposed in answers when being sued in New York for an out-of-state default judgment is that the out-of-state court lacked personal jurisdiction over the defendant. If the defendant does not allege this defense in their initial answer or responsive pleading, then this defense is waived, even if the defendant amends the answer later. Once the defense of personal jurisdiction is not placed in the initial pleading of the defendant, it is deemed waived by the court and cannot be revived later.
Most of the time, if an out-of-state default judgment is filed with an answer in New York, the court will review the case to ensure the defendant was served in accordance with the original state’s law and afforded proper due process. Assuming both occurred properly, the court will enter and domesticate the judgment.
If you are looking to domesticate an out-of-state judgment in New York, contact Frank, Frank, Goldstein and Nager for a consultation. We have the experience that pays.