LR Credit LLC Motion to Vacate Default Judgment; Defendant Was Never Served in Debt Collection Lawsuit by Mel S. Harris & Associates LLC

LR Credit 12 LLC v Walsh

Supreme Court of the State of New York

Appellate Term, Second Department

In this LR Credit collection lawsuit, the Appellate Term reviewed a Decision / Order of the Civil Court of the City of New York, and highlighted the sort of argument the Defendant needed to make in order to proceed with the claim she was never served with the Summons and Complaint.

For success on her motion to vacate the default judgment, the defendant should:

  1. Obtain a copy of the of service filed by the process server in the court clerk’s office.
  2. Review the date and time of service.
  3. Review the location where service was made, which is usually at the defendant’s last known address, and occasionally at place of employment.
  4. Review the manner of service:
    1. Personal “in hand” service is accomplished when the process server hands the lawsuit documents to the named Defendant. [1]
    2. “Suitable Age & Discretion Service” & Additional Mailing is made when the process server leaves the lawsuit documents with someone of suitable age and discretion at the Defendant’s last known address, and also mails a copy to the Defendant at that address. [2]
    3. “Affix to Door Service” & Additional Mailing is made when the process server tapes the lawsuit documents to the door of the Defendant’s last known address, and mails a copy addressed to the Defendant at that same address. [3]
  5. Provide a detailed explanation as to why the circumstances of service stated by the process server are inadequate for the Plaintiff to properly serve the Defendant and notify her of the lawsuit, for example
    1. Defendant and threw the document away thinking it was an advertisement.
    2. Defendant’s daughter is only 13 years old and is not of suitable age, or discretion to receive the lawsuit documents on the Defendant’s behalf.The young teenager probably put the papers with her school books and forgot to give it to her parents.
    3. Pesky neighbors or an estranged spouse are known to remove papers left outside Defendant’s house.

The reason for this protocol is the process server affidavit of service is a sworn statement and considered proof of proper. Accordingly, the burden is shifted to the Defendant to overcome the presumption of proper service. [4]

LR Credit files debt collection lawsuits under the names like LR Credit 1 LLC, LR Credit 2 LLC, and counting. They are usually represented in court by Mel S. Harris & Associates. Mel Harris may use a judgment against you to pressure you into an LR Credit settlement agreement. If LR Credit or Mel Harris and Associates threated you with a judgment, call our debt buyer defense lawyers for a free case review today.

[1] NY CPLR § 308(1) Personal service upon a natural person

[2] NY CPLR § 308(2)

[3] NY CPLR § 308(3)

[4] LR Credit 14, LLC v Walsh 2014 NY Slip Op 51872(U)