You may be surprised to know that most people sued by a creditor or debt collector fail to answer the lawsuit. In fact, statistics reveal that about 87% of consumers faced with a collection suit never respond at all. They do so for a variety of reasons.
First, and most typical, the individual may not be aware that a lawsuit was filed against them. Or, maybe you missed the time within which to answer the Complaint and simply gave-up or thought it was a lost cause.
Though these reasons are understandable, you should know that failure to answer or otherwise respond to a collections suit will almost always lead to a default judgment against you. This means that because you failed to take any action whatsoever within the time prescribed by law, the creditor who sued you obtained a Judgment against you. Clearly, this is not a good situation.
If a judgment has been entered against you, you must act swiftly and hire an attorney right away. Your attorney may be able to have this judgment vacated so that you can defend against the case on the merits, as if the default judgment never existed. Though certain requirements must be met, courts favor vacating default judgments so that every individual gets their day in court.
You must demonstrate two (2) things in order to vacate a default judgement: (1) excusable neglect, and (2) a meritorious defense.
Though there is no one, specific set of circumstances that constitutes excusable neglect and the determination will be made based on the unique facts of your case, common examples of excusable neglect include an illness or injury that prevented you or your attorney from timely responding to the lawsuit, or that you were improperly served with the Complaint. Unanticipated injuries or surgery that puts you in the hospital for an extended period of time during the case will also be excusable neglect.
Once you have established excusable neglect, the court will next decide whether you have stated a meritorious defense to the claims alleged against you. This does not require you to show that you will win the case, you simply need to allege a legally cognizable that defense that could possibly mitigate or completely absolve you of liability. There are often many available defenses to a collections case, even if you think that you actually owe the alleged debt.
Finally, and assuming you prove excusable neglect and a meritorious defense, the motion to vacate the default judgment must be filed within 180 days (6 months) after service by the clerk of courts of the notice of entry of judgment. If, however, one is not served, then your attorney will have two (2) years from the date of default judgment to file your motion to vacate.
If a creditor or debt collector has obtained a default judgment against you, or you have any other collection matter, you need the help of a knowledgeable debtors’ rights attorney. At Fitzgerald Campbell, our attorneys have decades of experience successfully representing clients in post-judgment proceedings and all other types of debtor defense cases, and we are here to help you!