If it is in CA, you simply try to beat the acceptance of the default. If it is already accepted you need to set it aside asap but no later than 6 months. If it is in NY, you need to ask a NY lawyer.
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You'll need to re-post and run this question by a New York attorney if the case is in New York. In California, a request for a default and/or default judgment does not even require a motion (and hence no opposition is permitted nor required).
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
The request for a default judgment, once filed, must be challenged by filing a motion to set the default aside. If you were properly served with the lawsuit and mistakenly did not file the response within the time limits, then the motion to set aside is under Section 473 of the Cal. Code of Civil Procedure (mistake, inadvertence, excusable neglect). However, you must act very soon under this statute, or you will be barred, probably after 90 days
I have an entire blog, linked below, on options to a default judgment. In particular, if you were NOT served properly, then you have more options and are not limited by Section 473, because the court did not properly acquire jurisdiction over the defendant with proper service. However, I still advise very prompt action by filing a proper motion with the court with sufficient evidence, as some judges require prompt action to set aside an invalid default judgment. Delay could mean that the judge will deny a motion to set aside a default judgment, but you would still want to explore the other options in my blog posting, below. I believe you should consult experienced defense counsel. If this is an unpaid debt, such as a credit card, then someone who has experience defending debt collection lawsuits, as many attorneys simply believe that if you had the credit card, a judgment is almost inevitable. It is not, see my blog, below.
Robert Stempler (please see DISCLAIMER below)
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If the motion for default is for a New York Action, you should file and serve a Cross- Motion, which opposes the granting of a default judgment and requests the court to permit you to file and serve a late answer. A successful cross-motion will (a) provide a good faith reasonable excuse as to why your did not timely answer the complaint served on you (ie- I don't live where the papers were sent; I was in the hospital for period of time; I have been out of the country for and just got back [obviously you would have to provide documentary evidence that proves what you were claiming as an excuse]and (b) will establish that you have a "meritorious defense" to the claim(s) being made to you. It could actually also seek alternative relief to dismiss the action if you were not properly served under New York procedural law. DO NOT DELAY.
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