Vacating a default judgment — the jurisdiction route, the excuse route, and what happens to the levy

A default judgment is not a finding that the claim was good. It is what a court enters when nobody appears to contest it. Nothing about the debt was proved, no document was tested, and the sum came straight off the face of the complaint. That is the opening both of the motions below are built on.

Everything turns on whether you were lawfully served

The instinct is to lead with the unfairness of the debt. Courts do not sort these motions by unfairness. They sort them by whether the court had power to enter the judgment at all — which decides your rule, your deadline and your burden.

The fact pattern behind the left branch has a name. "Sewer service" is where a process server never attempts delivery, discards the papers and swears an affidavit saying otherwise. It is not folklore. In July 2009 the New York Attorney General sued thirty-five collection firms and two debt buyers to throw out roughly 100,000 default judgments obtained on false affidavits from one Long Island process server — on the power CPLR 5015(c) gives administrative judges to act where default judgments were procured by fraud or in violation of due process.

The jurisdiction route is not on a clock

Rule 60(c)(1) puts a one-year outer limit on motions under Rule 60(b)(1), (2) and (3). Voidness under 60(b)(4) is not in that list — it is subject only to "a reasonable time", and courts have read that as effectively no limit, because a void judgment is a nullity and time does not make a nullity valid.

The category is narrow. In United Student Aid Funds v. Espinosa (2010) the Supreme Court described 60(b)(4) as reaching only "the rare instance where a judgment is premised either on a certain type of jurisdictional error or on a violation of due process that deprives a party of notice or the opportunity to be heard". Being served and losing is not it. Never being served is squarely it.

A softer route exists where service was technically good but you never learned of the case — substituted service left with a former housemate, say. New York's CPLR 317 lets a defendant not personally handed the summons defend within one year of learning of the judgment and no more than five years after entry, on lack of actual notice and a meritorious defence, with no excuse required. California's § 473.5 is the same idea on a shorter fuse: the earlier of two years after entry or 180 days after written notice. Backstops, not the void attack.

California has rewritten this, and it lands in 2027

If you are researching California, read the date on whatever you are reading. Assembly Bill 747, the Service of Process Accountability, Reform and Equity Act, was signed on 10 October 2025 as Chapter 563 and becomes operative on 1 January 2027. The legislative history names its target: sewer service, "so denominated because the server throws the documents down the sewer and then falsifies its affidavit".

• A new Code of Civil Procedure § 473.2 gives an express motion to set aside a default or default judgment where the summons was not served as the service statutes require, brought at any time after entry.
• The burden moves. Once the moving party proffers sworn evidence that service was not lawfully effected, that rebuts the presumption attached to the process server's return, and the party who took the default must prove lawful service by a preponderance of the evidence.
• "Reasonable diligence" before substituted service becomes three good-faith delivery attempts on three different days at three different times, and proofs of service must carry timestamped, GPS-tagged photographs of the entrance.

The excuse route runs in months

Where you were served and did nothing, you are asking for discretion rather than asserting a right, and the windows are short. Move before judgment is entered if you can: a bare entry of default, with no judgment yet, is set aside for "good cause" under Rule 55(c) and its state analogues — a materially easier test than any of the below.

What a "meritorious defence" has to be

Not a winning defence, and not one proved on the motion. It means a defence with substance, set out in a sworn affidavit with enough fact that a judge can see the case would have been contested. "I dispute the amount" is not one. "The last payment was in March 2021 and they sued in 2025" is.

In a debt buyer case the defences that work are narrow and repetitive: limitation, identity, chain of title, amount. Limitation is usually the strongest, and it has moved. New York's Consumer Credit Fairness Act cut the period for consumer credit actions to three years in CPLR 214-i, and provided that once it expires a later payment or written or oral affirmation "does not revive or extend" it — closing the trap where one small payment restarts the clock. Federally, 12 CFR § 1006.26 makes it a Regulation F violation to bring or threaten a legal action on a time-barred debt, and 15 U.S.C. § 1692i confines a collector to the district where the consumer signed the contract or lives. Date the last payment before anything else.

The levy does not stop because you filed

This is where the money is lost. A pending motion to vacate is not a stay. The restraint stays on, the deduction keeps coming out of the pay cheque while the motion sits on a calendar, and by the time it is heard the funds may be gone. Ask for the stay in the same papers — many courts grant an interim stay when they sign the order to show cause, and CPLR 5240 gives New York courts broad power to deny, limit, condition or modify any enforcement procedure on the motion of an interested person.

When the judgment is vacated, everything standing on it falls with it: the income execution, the bank restraint, the lien on any real property. But "falls" is a legal conclusion, not an administrative event. Nobody at the clerk's office, the sheriff's office or the bank is watching your docket. Serve the vacatur order on each of them and record it where the lien was docketed. A short written notice enclosing a certified copy is the whole of it.

Winning the motion can be the wrong outcome

Vacating on excusable neglect does not end the case. It puts you back where you were the day the summons arrived, defending a suit, with interest that has run throughout and a creditor who now has your address. If you had no defence before, you have none now — you have bought time and a hearing date.

Vacating for want of jurisdiction is a different animal, and this asymmetry is worth planning around. If the court never acquired jurisdiction, the relief is vacatur and dismissal, not vacatur and an answer. The creditor must commence again, and by then the limitation position may have changed decisively. New York makes the point in the unfriendliest way for a plaintiff: CPLR 205(a) gives six months to refile after a timely action terminates, but expressly excludes termination for "failure to obtain personal jurisdiction over the defendant". Win on service after the three years of CPLR 214-i have run and the claim is gone.

Which is why the order of the grounds matters. Courts vacate on terms: CPLR 5015 says "upon such terms as may be just" and California's § 473.5 "on whatever terms as may be just", and terms can include preserving the lien as security or holding the levied funds pending the outcome. Reasonable enough where the default was your own oversight; not something a court should impose where the judgment was void from the start. Plead the jurisdictional ground first, and separately.

These motions succeed more often than people expect, and it is not judicial sympathy. It is that the file is thin: a judgment nobody contested, on an affidavit nobody read, for a sum nobody proved. A dated, sworn account of where you actually were on the day you were supposedly served changes the character of that file, whatever the debt behind it turns out to be. Meanwhile the excuse-route clock is running, and if the frozen account is the urgent problem, deal with the levy itself in parallel — exemptions and vacatur are separate applications, and the exemption is much the faster.