When vacating a judgment entered against you is it better to make a regular motion or move by order to show cause?
In order to decide, you’ll need to understand what the two are and the key differences between them.
Notice of Motion
In non-emergency situations, a party seeking a court order would proceed by notice of motion.
The notice of motion would include a date for the proposed hearing and the type of relief or order the party seeks. The other side and their counsel are then served the notice of motion and supporting papers.
The supporting papers that accompany the notice of motion should demonstrate that you are entitled to the relief requested. Your sworn statement with supporting exhibits should meet New York’s threshold to vacate the judgment, indicating that you have both an excusable default and a meritorious defense.
Order To Show Cause
An order to show cause is more of an emergency application to the court. The judgment creditor must “show cause” why the court should not vacate the judgment or release the restraining notices placed on the defendant’s bank account.
An order to show cause is very different from a notice of motion in that the requesting party must submit the papers to a special clerk for approval before being able to file the application. Once approved, the order to show cause and supporting papers go to the judge for their signature, allowing you to make your request for the relief requested and possibly more. The documentation would be similar to that accompanying your notice of motion. But, the order to show cause would demonstrate that there is an urgent situation. An order to show cause is a time-consuming process that requires the debtor to substantiate with evidence why the judgment should be vacated. In certain jurisdictions in New York, the courts have been directed to hear cases on the merits when possible, so the threshold to vacate a judgment is low in said jurisdictions.
Issues With Proceeding By Notice of Motion
One problem with a notice of motion is that there is nothing to stop the plaintiff or judgment creditor from proceeding to collect while the motion is pending. Let’s assume your accounts are frozen due to a bank restraint. While you are serving your motion, waiting for opposition papers, drafting possible reply papers, arguing the motion, and awaiting the court’s decision, the plaintiff/judgment creditor is free to execute on any funds being held through a levy by a marshal or sheriff. The plaintiff would only be required to return any monies collected if the motion is granted and the judgment vacated. It should be noted that it could be months before a judge rules on the motion, meaning you could be without your funds for a while before any money is returned, assuming the motion is granted.
Therefore, a notice of motion should only be filed in a non-emergency situation where there are no funds being restrained by the judgment creditor.
Benefits of an Order To Show Cause To Vacate a Judgment
Another difference is that in an order to show cause, the defendant can request interim emergency relief from the court while the application is pending. The most important form of interim relief is what’s called a “temporary restraining order” or “TRO.” A TRO stops the plaintiff from executing the judgment until the judge decides upon the entire application. The judge will decide whether there is enough merit to grant a TRO and also whether to sign the order to show cause and hear the motion. If, after reviewing the sworn statement and the supporting documentation provided by the defendant, the judge feels the application lacks merit, the judge may decline to sign the order to show cause and the judgment creditor will be able to proceed with execution of the judgment.
However, assuming the judge decides that the application is acceptable, the judge will sign the order to show cause. The judge will then set forth a return date where the motion should be heard as well as the required method of service on the defendant, and when opposition papers are due from the plaintiff. It should be noted that while an order to show cause with a TRO will prevent the plaintiff from taking the funds until the application is decided, the funds in question will still remain frozen until the application is pending.
If your accounts are already restrained, it is advisable to file an application with the court by way of an order to show cause in order to prevent the plaintiff from taking any funds of yours that are frozen due to a bank restraint.
Because the order to show cause stays all executions on the judgment, it may also entice the judgment creditor to resolve the case for more favorable terms. Otherwise, they have to go through the process of opposing an application and waiting for a judge’s decision.
Requirements for Vacating a Judgment
As a reminder, under the New York Civil Rules, in order to vacate the judgment, you first need to show the court that you have both an “excusable default” and a “meritorious defense.” That is true regardless of whether you move by notice of motion or by way of order to show cause.
An “excusable default” is a valid reason why you did not respond to the complaint when you were first served. Some possibly valid reasons include:
- You were not served with the complaint
- You did not reside at the address where service took place
- You were out of the country at the time of service
You would need to show the court that you have a “meritorious defense” to the allegations contained in the complaint. Such defenses could be that you dispute the plaintiff’s allegations, the amount the plaintiff is suing for is incorrect, or the plaintiff is suing the wrong party.
If you are looking to vacate a judgment or need help with a debt collection matter, contact Frank, Frank, Goldstein and Nager.
