I sued a bank and served the retained attorneys. They did not answer. Another attorney filed a notice of entry 45 days late. I paid the clerk for a search for change of attorney and no record was found. No compliance with CPLR 321. At the preliminary hearing 2/9/2012 the request was made for the attorney to produce retainer document signed by the bank. The time has expired for him to produce it. What is the proper steps to take to prevail in this default and attach to the subject property and enforce the $219,200 pending judgment?
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Breach of Contact / Default
- Thread Starter Rg1010
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fredrikklaw
Moderator
Entry of Default; Entry of Default Judgment
First of all, I would not concern myself with who is, or is not representing the defendants; it has no bearing on your situation and truth be told (and respectfully) it is not yours to decide whether the opposition is represented or not. Leave it be.
Now, default proceeding is a two-step dance. Whenever the dispute is over a liquidated amount as I understand what your case is about from the information given, you will (1st) have to file a Request for Entry of Default, in the absence of which you will soon be getting an O.S.C. (order to show cause) to answer why you have not moved for default yet. Once the clerk of the court enters the defendants' default, you will (2nd) then call the calendar clerk of the department in which your case is assigned to and schedule a Hearing for Entry of Default Judgment.
Your application for the request of entry of default HAS TO be accompanied with an AFFIDAVIT stating more or less what you have give here, that the defendants were served; they have not responded or otherwise appeared within the time allowed by the Code; etc., etc.
fredrikklaw
First of all, I would not concern myself with who is, or is not representing the defendants; it has no bearing on your situation and truth be told (and respectfully) it is not yours to decide whether the opposition is represented or not. Leave it be.
Now, default proceeding is a two-step dance. Whenever the dispute is over a liquidated amount as I understand what your case is about from the information given, you will (1st) have to file a Request for Entry of Default, in the absence of which you will soon be getting an O.S.C. (order to show cause) to answer why you have not moved for default yet. Once the clerk of the court enters the defendants' default, you will (2nd) then call the calendar clerk of the department in which your case is assigned to and schedule a Hearing for Entry of Default Judgment.
Your application for the request of entry of default HAS TO be accompanied with an AFFIDAVIT stating more or less what you have give here, that the defendants were served; they have not responded or otherwise appeared within the time allowed by the Code; etc., etc.
fredrikklaw
The preliminary hearing was attended by the unauthorized attorney. The court lawyer asked him if he truly had jurisdiction he said yes, I produced the court record, the case log from the orders department that clearly indicated another attorney as "retained counsel". She glared at him and told him he had to serve me with the retainer doc in order to proceed.
The relevance to the compliance to the statute CPLR 321 speaks to the conduct of the defendant in respect to the cause of action and the defiance of the rule of law in remitting to "game" the court. I understand that I have a year to seek default though I will not delay. I want to wrap this thing up within the next few months.
In addition, to the breach of contract I filed a mechanics lien and have taken the first steps to foreclose. The same situation exists, that of late answer by the same unauthorized attorney. He admitted at the hearing that he saw the case on eCourts.
In that case, should I follow the same procedure? FYI the B of C index no. 251491/2011 and the ML Foreclosure index no. 251501/2011 both are in Bronx Supreme Court.
Thank you for you frank and knowledgeable assistance.
- Richard
The relevance to the compliance to the statute CPLR 321 speaks to the conduct of the defendant in respect to the cause of action and the defiance of the rule of law in remitting to "game" the court. I understand that I have a year to seek default though I will not delay. I want to wrap this thing up within the next few months.
In addition, to the breach of contract I filed a mechanics lien and have taken the first steps to foreclose. The same situation exists, that of late answer by the same unauthorized attorney. He admitted at the hearing that he saw the case on eCourts.
In that case, should I follow the same procedure? FYI the B of C index no. 251491/2011 and the ML Foreclosure index no. 251501/2011 both are in Bronx Supreme Court.
Thank you for you frank and knowledgeable assistance.
- Richard
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