motion to vacate judgement; the defendant failed to send me a copy of their motion

[lomcovaks]

For background to the situation:

I live in the UK. Three months after my wife's sudden death in 2008 I was approached by a person living in NYC who took advantage of my fragile emotional state and took a substantial sum of money off me as loans for a property rental.

As soon as they had the money they cut all contact and refused to pay the money back.

After a year and a half of trying my best to get the money repaid I issued a summons as a pro se litigant in the new york civil court.

From the outset, the defendant has tried to avoid the summons and just kept delaying the proceedings. At considerable personal cost in time and money I have flown to new york for every hearing.

Having been ordered by the court to interpose and file defense, they instead, on the final day of the 30 days permitted, filed a motion to dismiss as the court lacked jurisdiction. They are a Spanish citizen and tried to pretend that they didn't live or work in the US and only came on a visitor's visa.

This motion was denied, based upon the ample evidence I presented and a date was set for bench trial.

On the day of the trial the defendant failed to show but sent a fax the day before, again claiming non jurisdiction and lack of service. The judge checked that the notice of denial and date of trial had been properly served and then held the inquest and gave me judgement.

I sent a notice of entry of judgement to the defendant a few days later.

I subsequently telephoned the clerk to the court to thank them for their invaluable advice and assistance only to be told that the defendant had come to the court and file a motion to vacate the judgement with a date set for the hearing.

The defendant has failed to send me a copy of their motion, obviously hoping that I won't show on the day and they will be given default vacation of the judgement.

I will be going to the hearing of course but I have a number of questions and I wonder if someone can assist me?

What is the best way to inform the judge of the defendant's failure to abide by court rules and send me notice of their motion? Should they have proof of mailing and delivery?

How likely is the defendant to win their motion to vacate, causing me further time and expense? Their intent is entirely to prevaricate, they've never filed a proper defense to my claim and have relied entirely upon wild claims of non jurisdiction of the court.

As I don't know the grounds upon which the defendant is filing the motion, what is the best way to present written opposition for the judge? At the moment, all I've done is set out a written chronology of the defendant's mendacity and failure to engage and requested that the court upholds the judgement that I won.

The defendant, of their own volition, failed to appear for the trial and I know the judge specifically checked that they'd been properly served before they started the inquest.

Is this the last, desperate roll of the dice by the defendant or will they be able to stall things further?

Many thanks in advance for advice offered.

[AFFA]

I wish to inform you that you may go to court and represent yourself on the date of hearing and can inform court about the fact that no service of motion upon you. Further willful default by the other party may also be shown in court so that other party's motion may not be passed. You may give a notice to other party that you must be served with the motion so that you may argue yourself. This notice will serve as evidence of the fact that other party had intentionally not served documents upon you. You may also file for execution of court judgment if other party does not pay you the amount ordered.

AFF

[Lexus]

In court proceedings parties are bound to follow court rules and statues. Here, if the facts are true the defendants have purposefully violated the rules and procedures. You may represent yourself before the court on the motion hearing date and inform the court that the defendants have not served with the copies of motion to you and are playing nasty tricks to prolong the case. Moreover the defendants trying to spoil the valuable time of the court. If the defendants taking the stand that they have served copy to you, then you may ask for proof of service of the same. Mean time you may file a execution of the court judgment, if the defendants’ have not complied with the order. All the best!

[lomcovaks]

Thank you both for your very informative replies, I very much appreciate it.
The hearing is scheduled for the 7th Sept so I shall give an update of how it went as soon as I am able after the hearing.

[Friend In Court]

You may wish to in addition to opposing the motion to set aside aside judgment, have the defendant served with supplemental proceedings -- set for the same date, immediately after the court hearing. Most likely he will appear for the motion to set aside since he brought it and wants the relief.

Supplemental proceedings as you probably are aware is a discovery proceeding of what the defendant owns and where those items are, e.g. real estate, bank accounts and their numbers, etc.

Then you can levy and collect.

[lomcovaks]

Thank you for the advice Friend in Court. Difficulty is that being in the UK, I can't easily get the information supoena forms signed by the clerk to the court.

However, I spoke to the clerk this afternoon and have arranged to meet him early on the morning of the hearing to pay the relevant fee and get the supoena forms signed - then I'll serve them on the defendant in the courtroom.

They will be hoping that I won't even be aware of the hearing or show up so it will be a 'bad hair day' for them!

[lomcovaks]

A very quick question for any knowledgeable readers out there:

As a pro se litigant in this case, am I entitled to ask for an award of costs and imposition of financial sanction for frivolous conduct in this case under subpart 130-1.1? Namely that under c (2) the defendant is making their motion to dismiss primarily to delay or prolong the resolution of the litigation and has under (3) made factual statements that are false, with their previous motion to dismiss because of lack of jurisdiction that the court denied?

It was the denial of the defendant's previous motion that stated the date for bench trial and any person exercising reasonable diligence would have taken steps to ensure they discovered the outcome of their action with the court.

Furthermore, the deliberate policy of not informing the plaintiff of this motion to vacate judgement demonstrates a willingness to mislead the court.

Only wondering if it's worth putting in my opposition paper to the motion or a non flyer? My flight's tomorrow morning so would appreciate any sharp answers asap.

Many thanks all.

[lomcovaks]

I'm now back from visiting my friend in LA after the court hearing in NYC and able to give a write up of what happened.

To say that I feel let down by the justice system is quite an understatement.

I went in to court, feeling well prepared with all the file material to hand and sincerely believing that the defendant was going to have one hell of a hard time from the judge in trying to justify why the judgement I'd gained should be vacated.

Called up to the bench, the first thing the judge says to the (female) defendant is "You've applied for a protection order - would you like me to issue that now?" The defendant says 'No, no I won't need that. Then the judge asked if the defendant would like an interpreter as they're of Spanish origin but speak perfect English. Again, the response was no.

Then, on my first opportunity to speak I indicated that the defendant was wasting valuable court time as they hadn't served me with notice of their application to vacate or date of the hearing. The judge asked the defendant to show proof of service and they produced a hand written sticky backed label that had no stamp or receipt from any postal service on it and the judge accepted it!

From the outset, the judge, I suspect because of the protection order application, treated me like a violent, abusive male and was totally biased against me.

The bizarre thing is that I live on a different continent to the defendant and have no contact with them whatsoever except through the judicial process and have never been anything other than polite and calm in asking that they repay me my money.

I put my case forward to the judge and indicated the lies of the defendant by producing relevant case documents.

The judge became quite animated and told me to shut up and only speak when she wanted specific answers from me otherwise they'd make me sit at the back of the court until the end of the day. However, in doing so they also admitted that they hadn't read the case file before the hearing on the motion and didn't have it to hand and thanked me for giving her relevant papers from my bundle!!

It appeared that the defendant was somehow claiming non service of the original summons at her Manhattan apartment and so I produced the process server's report for the judge who then pointed out that the summons had been served at two addresses and asked what the second address was to the defendant. "It's my business, I represent Spanish companies in the US - but you can't deliver mail there it's just a big room" said the defendant.

At this point, I produced the defendant's previous motion to dismiss the action as the court lacked jurisdiction and said to the judge "Your honour, the defendant has filed a sworn affidavit with this court in support of her motion that she only visits the USA on a visitor's visa and doesn't work here. How does that sit with her declaration to you that she runs a US based entity?"

"Yes ....yes" said the judge thoughtfully. I finally sensed that the tide of prejudice was starting to turn as the defendant was so clearly being less than candid.

The judge then turned to the defendant and asked what their defence to my claim was. "It never happened, they never loaned me no money."

I handed the judge a photograph of a phone screen depicting a text received from the defendant in which they ask me to lend them money. "What do you make of this?" Asked the judge of the defendant "It's just an email, it's not real" replied the defendant.

There were a few more words and the judge told the defendant that if she so wished, she could order a retrial and then we were dismissed to await the judge's decision.

I subsequently spoke to the clerk to the court who was horrified at the use of a protection order as a tool against me in the case. He also said that the judge would have to refer to the previous decisions and orders made by earlier judges who had all found the defendant to be lying in her claims of non-domicile and non receipt of court paperwork.

When I eventually hear, I shall post the outcome but at the most it will mean one more trip back to New York for a re trial.

[Friend In Court]

You may wish to bone up on "abuse of process." If the protection order case is dismissed you just may have a case against her for damages. That is in addition to whatever else she owes you. It is a separate cause of action.

[lomcovaks]

Many thanks for your response Friend in Court.

I have already made an application in my opposition paper to the motion to vacate based upon the frivolous nature of the defendant's application - obviously designed to cause maximum inconvenience and expense to me whilst they are lying about where they live.

When pressed by the judge, despite having made an application for the protection order, the defendant wouldn't go ahead and have it issued - not with me present anyhow. I believe they were hoping I wouldn't appear at the hearing and they would have done it ex parte.

Quite how it will sit with this judge when she finally gets around to reading the case file is anyone's guess but I'd think they'd see the defendants duplicity.

I will let you know.