Ulster, NY asked in Consumer Law for New York

Q: I have a judgement against me from Capital One Bank, How do I get this dismissed in court?

I already paid them $701.93 once I received the summons, now they are seeking another $1153 from me. My orginial balance with Capital One was $500, I have paid well over that already. I was never given the oppurtunity to go to court and I want to file to dismiss. How do I go about doing this?

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1 Lawyer Answer
Matthew Parham
Matthew Parham
  • Consumer Law Lawyer
  • Buffalo, NY
  • Licensed in New York

A: If you have grounds to do so, you would first have to file a motion to vacate the judgment, which would then reopen the lawsuit.

The grounds to vacate that most commonly apply are (a) an excuse for defaulting, (b) no personal notice of the lawsuit, or (c) no jurisdiction over you.

If there was no jurisdiction, you have no time limit to move to vacate and can do so at any time. To show there was no jurisdiction, you need to show there was something wrong with how they served the summons on you. You state that you got the summons, so it is unlikely that there is a jurisdictional problem, though there may be if, say, you received it only in the mail. You would have to look at the affidavit of service filed with the court to know for sure then whether there was an actual problem. Since this seems unlikely to be fruitful, I'll discuss the other two grounds.

If the summons was not handed to you personally but was, instead, handed to someone else or taped to your door, you can make a motion under CPLR 317. The time limit is within 1 year after you find out about the judgment and within 5 years of the judgment being entered. Alternatively, if you have an excuse for defaulting, you may make a motion under CPLR 5015(a)(1) within a year after learning of the judgment. You state you made payments after receiving the summons. Sometimes courts find that if a person thought the matter was resolved because they contacted the creditor or its attorney and agreed to make payments, that is a reasonable excuse for defaulting in the lawsuit.

For either of the latter two types of motion, you also need to show that you have a potentially valid defense to the lawsuit. If you thought you'd settled for the $701.93, that might be a defense. It also sounds like you think their current balance is inflated, which could be a defense. You'll want to document these things as best you can. There can certainly be other defenses.

If there are grounds for the motion, procedurally you file an "Order to Show Cause" with a supporting Affidavit. The affidavit is your explanation, under penalty of perjury and signed before a notary, of why the judgment should be vacated - i.e., your excuse for defaulting and why you think you have a good defense to the lawsuit. The order to show cause is something that you can probably get a form for from the court clerk or county clerk. You file these papers, pay some fees if you're in Supreme Court (in lower courts there are no fees), and the papers go to a judge who will sign them and give you a return date to come argue the motion, and will also give you a deadline to serve (probably by mailing) copies of the papers on the creditor's lawyer. Then you come back on the return date and argue why the judgment should be vacated.

There are attorneys who handle these things and who could give you more specific and tailored advice, and I certainly encourage you to consult with one.

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