Consumer Debt Defense Case Law: Chase Bank USA, N.A. v Schwartz

Chase Bank USA, N.A. v Schwartz, 61 Misc 3d 137(A) (App Term 2018). “Knowledge of A Debt Prevents Challenging Default if Fail to Act”. Here is another case whereby the defendant had knowledge of a debt and failed to act until years later to challenge the judgment on default.

  1. Motion to Vacate Judgment: Here, defendant averred he was not served. Plaintiff submitted an affidavit attesting defendant was served by substitute service in 2006. [CPLR 308(2)]. A judgment was entered in 2007. In 2008, [plaintiff provided unrebutted evidence] that defendant had knowledge of the judgment since his bank account was levied, that plaintiff recovered partial satisfaction of the judgment, and defendant had sent plaintiff’s attorney a letter shortly thereafter offering to pay an additional amount in full satisfaction of the judgment. Then in 2015, the defendant moved to vacate the judgment averring that he was never served. The lower court’s decision to deny defendant’s argument was affirmed by the Appellate Term, Second Department, since defendant waited 7 years to move to vacate.
  1. Lack of Personal Jurisdiction: a defendant waives the issue of lack of personal jurisdiction by appearing in an action, either formally or informally, without raising the defense of lack of personal jurisdiction in an answer or pre-answer motion to dismiss. Additionally, a defendant may waive lack of personal jurisdiction by making payments pursuant to a judgment or wage garnishment for a substantial period of time. Here, [plaintiff provided unrebutted evidence] that defendant had knowledge of the judgment since his bank account was levied, that plaintiff recovered partial satisfaction of the judgment, and defendant had sent plaintiff’s attorney a letter shortly thereafter offering to pay an additional amount in full satisfaction of the judgment. Then in 2015, the defendant moved to vacate the judgment averring that he was never served. The lower court’s decision to deny defendant’s argument was affirmed by the Appellate Term, Second Department, since defendant waited 7 years to move to vacate.
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