hey does anyone know if you can ask for costs when you are vacating a default judgment via order to show cause? ok let me explain. i have a default judgment. i have drawn up my order to show cause for motion to vacate. can i ask for costs and then counterclaim when (if) the case goes back on the docket? or am i allowed to ask for costs only in the counterclaim? i am unfamiliar with this, thanks
An order to show cause why the default judgment should not be vacated? I don't think that is the proper way to go about getting a judgment vacated. I'm not an attorney so I can't give advice or state legal opinions but I'll bet money that in order for you to demand that a judgment be vacated you have to show cause why it should be vacated, not demand that someone else show cause why their judgment should or should not be vacated. You have to move the court to do something for you or the court has no authority to act. You have to show the court why and how you have been injured by the action of the court. The plaintiff didn't injure you by moving the court to act in their behalf. You injured yourself by not responding to the demand unless you can prove that you were never properly served or never had an opportunity to defend for some reason. I'd strongly recommend that before you attempt to move the court to vacate their judgment you study federal rules of civil procedure 12, 59 and 60 to see if you have grounds to demand that the court vacate the judgment. Those are pretty tough hurdles in most cases. If you can comply then maybe you might have a chance.
this is for an order to show cause to vacate a default judgment......not for an order to show cause why it should not be vacated. i am asking becuase i was not served pursuant to CPLR and also the facts surrounding the action were misrepresented. i have everything i need i just want to know if costs can be requested on this specific order to show cause.
You can request anything you want to request. The question then remains whether or not the judge will grant your request and nobody but the judge can give you an answer to that question.
