I just had an Order to Show Cause approved by the judge. It's based on a credit card debt. I was never served and also believe the amount of the debt is wrong. At the Order to Show Cause hearing, am I going to be asked anything or spoken to or is just the attorney for the Plaintiff going to speak? What exactly happens at this hearing and after the hearing? Thanks in advance.
Strictly speaking you are the one being ordered to show (cause) why the other party shouldn't get a certain thing from the court (I'd need more detail to comment on the substantime law regarding what your adversary is looking to get from the court).
At the return or hearing date you have a due process right to be heard in opposition to what your adversary is asking of the court. I strongly advise consulting an attorney in regards to the substance of the case and order to show cause before the current return date. Also you should review the order to show cause very carefully to determine if deadlines have been set for you to submit written arguments.
This response contains general legal information and is not intended to serve as specific legal advice for your situation and does not create an attorney-client relationship. You are encouraged to contact an attorney in order to have a thorough and confidential consultation in order to obtain specific legal advice for your matter.
Dear Mineola Resident:
At the argument of your order to show cause the burden rests on you to convince the court that the judgment already entered on default should be opened and that you should have a chance to defend against the underlying complaint or to have a judgment dismissing the complaint. Your supporting affidavit had to set out two important points. One being the reason you did not answer the complaint in the first instance. You claim you were never served but the court required an affidavit of service from the plaintiff in order to allow for a default judgment when you did not answer. You need to know the facts claimed by the process server that claimed to make the service of the complaint. Now that person may still work as a process server or may be long gone. If you have seriously factually disputed the claim facts of service, you set up both a reason to open the case as well as dismiss the complaint. The plaintiff's lawyer will know if the process server is available or not to testify at a traverse hearing, should the judge decide that you have the chance to show that you were not served with the complaint. If the process server is "gone" the lawyer may try to have you agree to have a chance to appear in the case and may "consent" to your order to show cause. So be aware. The second part of your argument is that the debt is not valid. There are many possible defenses available in a credit card case, but you argued only one that the amount of debt is wrong. Essentially, that admits all other parts of the complaint other than the amount owed. That sets you up to needing to make a deal in case the default judgment is vacated and the court does not dismiss the complaint on bad service.
Read more about vacating a default judgment at: http://courts.state.ny.us/COURTS/nyc/civil/vacatingjudg.shtml
Read how to defend against a credit card complaint at: http://www.civillawselfhelpcenter.org/self-help/lawsuits-for-money/pleading-stage-filing-a-complaint-or-responding-to-a-complaint/243-responding-to-a-complaint-if-you-ve-been-sued
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Orders to show cause are deceptively worded, because it appears the other side is being summoned to account for their actions. But this isn't really the case. The signing of the order to show cause itself just means that, if you serve the order in compliance with its terms, or a statute, whichever governs, you will have jurisdiction over the respondent. The relief you are requesting will not be granted unless you can meet your burden of proof. You will likely be asked by the judge to present your arguments, and the respondent will then respond.
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