Once you start legal action to collect debt in New York, you need to continue the momentum. One day too late may mean you lose the chance to continue your New York debt collection case. In fact, your delay could result in the debtor getting your case dismissed.
The court may find the delay in taking action on your case unreasonable. The other side may take steps to demand you take action to move the case forward. Or, no one takes any action and the court rules you abandoned your case for “want of prosecution.” Abandoning your debt collection case can happen even when the debtor doesn’t appear.
How Lateness Can Hurt Your Case
Here’s an example: You may have started your action by filing the summons and served the other side with the summons and complaint. The debtor didn’t answer or appear in the action.
The next step when the other side doesn’t answer or appear is to submit a default judgment to the court. To do so, your collection attorney will ask that you return the executed affidavit of facts and accompanying certificate of conformity. For whatever reason, sometimes these documents are not completed and returned until later. Once completed, the judgment roll is submitted for entry. The judgment roll contains the:
- Proposed judgment
- Requisite affidavit
- Certificate of conformity
- Any underlying documentation required by the court
A delay in returning the affidavit could prevent the judgment from being submitted to the court within a year from when the debtor was served. Even a single day late could result in the clerk rejecting your proposed judgment — requiring you to obtain an order from the judge directing the entry of judgment. The court will assume you abandoned your case because the judgment wasn’t submitted within a year.
Alternatively, you, the creditor, may need to explain to the court why the delay is excusable to prevent the debtor — now a defendant — from filing a motion to dismiss your case.
Bringing Back the Action
You will need to provide a valid excuse for the delay as well as show that your case has merit. If the court dismisses your case for failure to prosecute or “want of prosecution,” it is generally “without prejudice.” This allows you to bring the action again.
Although you can start from the beginning, you may still have problems. Depending on when the underlying unpaid transaction occurred, your claim may be past the statute of limitations for New York debt collection claims. In that case, the delay may prevent you from prosecuting your own case.
Make sure you use a collection attorney for your New York debt collection case who knows the intricacies of prosecuting debt collection. If you’re a day too late, it could prevent you from winning your debt collection case. For a consult, contact FFGN.
