Confession of Judgment Defense
No summons. No court date. No judge. Just a judgment, and then a frozen account. Here is exactly how that happened and what you can challenge.
- No lawsuit, no judgeCPLR 3218
- No entry against non-residents since 2019L.2019 c.281
- Move to vacate promptlyCPLR 5015(a)
A confession of judgment is entered by a clerk, not decided by a judge
When you signed the funding agreement, you almost certainly also signed an affidavit of confession of judgment, often a single page, often presented as routine paperwork. That affidavit is what lets the funder skip litigation entirely. Under CPLR 3218 the funder files the affidavit with a county clerk together with an affidavit stating the amount due, and the clerk enters judgment. There is no complaint, no summons, no appearance, no motion, and no judicial review of whether you owe anything at all.
The first you hear of it is usually the consequence rather than the judgment: a restraining notice on your operating account, an information subpoena served on your bank, or a lender telling you a judgment showed up on a search.
Since 2019, New York clerks may not enter a confession of judgment against a non-resident
Chapter 281 of the Laws of 2019 amended CPLR 3218 to require the affidavit to identify the county where the defendant resided when it was executed, to confine filing to that county, and to bar entry against a defendant who did not reside in New York at that time. A very large share of MCA confessions of judgment were taken from out-of-state merchants and filed in New York counties chosen by the funder's counsel for convenience.
If you were an out-of-state business or guarantor when you signed, and a New York clerk entered the confession after the 2019 amendment, the defect is on the face of the record. It is a threshold problem, not a factual dispute that has to be tried.
Grounds we look for
Vacatur, a court order setting the judgment aside, is not a general appeal to fairness. It is a record-based attack, and the record is short: the affidavit of confession, the affidavit of amount due, the funding agreement, and the judgment as entered. The recurring grounds are these.
Residency and venue defects
Since 2019, a clerk may not enter a confession of judgment against a non-resident, and filing outside the county of residence is improper. Both defects show on the face of the clerk's file.
The affidavit does not state a sum certain
New York law has long required that the affidavit state the facts out of which the debt arose and show that the sum confessed is justly due. That is the rule reflected in cases such as Giryluk v. Giryluk, 30 A.D.2d 22 (1st Dep't 1968), aff'd 23 N.Y.2d 894 (1969). An affidavit that confesses to an open-ended or future-determined amount, or that recites a formula rather than a number, is vulnerable.
The judgment entered exceeds the amount confessed
This is the most common arithmetic problem in the file. The affidavit confesses to one figure; the judgment as entered adds default interest, an attorney-fee percentage, an NSF schedule, and sometimes the unpaid balance of a different advance. A judgment cannot exceed what the affidavit authorizes.
Security for future advances
A confession of judgment taken as blanket security for indebtedness not yet incurred is a different instrument from one confessing a presently due sum, and courts treat it accordingly.
Fraud, duress, and lack of consideration
These grounds exist, but the procedural path is different, and that distinction matters:
Motion or plenary action?
Where the defect appears on the record (non-resident defendant, no sum certain, judgment entered for more than was confessed, improper county), relief is available by motion to vacate.
Where the attack rests on fraud in the inducement or on facts outside the record, New York practice has generally required a plenary action, meaning a separate lawsuit of your own, rather than a motion. Choosing the wrong one costs weeks you do not have while the restraint is live. We routinely pursue record-based vacatur by motion and reserve the plenary route for what genuinely requires it.
Vacatur alone does not unfreeze your accounts
This trips people up. A pending motion to vacate does not, by itself, stop enforcement. The restraining notice stays effective, the information subpoenas stay answerable, and a levy can proceed. Emergency relief has to be requested separately: a stay under CPLR 2201, relief under CPLR 5240, or a temporary restraint built into the order to show cause. We ask for vacatur and the emergency relief in the same application, rather than winning the motion and discovering the account is still locked.
The dates that govern
| Event | Governing rule | Timetable |
|---|---|---|
| Motion to vacate, record defect | CPLR 5015(a); CPLR 2221 | Move promptly. Where the ground goes to the clerk's authority to enter the judgment at all, the one-year excusable-default window is not the operative limit. |
| Motion to vacate, excusable default | CPLR 5015(a)(1) | One year from service of the judgment with written notice of its entry. |
| Restraining notice in effect | CPLR 5222(b) | One year from service, and it can be served again. |
| Information subpoena response | CPLR 5224 | Answers are due within the period stated in the subpoena. Failing to answer carries its own penalty. |
| Appeal from the order deciding the motion | CPLR 5513 | 30 days from service of the order with notice of entry, 35 if served by mail. |
This is general information, not advice on your matter. Which ground applies, which procedure is correct, and which deadline controls all depend on your specific affidavit, the county of filing, how enforcement has proceeded, and the current state of the law. Send us the documents and we will tell you what actually applies.
What to send us
- The affidavit of confession of judgment you signed.
- The funding agreement and any addenda, including the fee schedule.
- The judgment as entered and the affidavit of amount due, from the county clerk's file.
- Any restraining notice, information subpoena, or levy you or your bank received.
- Bank statements covering the funding period and the remittance history.
If you do not have all of it, send what you have. The clerk's file is public and we can pull the rest.
One page, signed before anything went wrong, and no court date on it
A confession of judgment is not a court decision. It is an affidavit you signed at the start, filed later with a clerk, that converts into a judgment without a lawsuit. Four things on it decide whether it survives.
- The county-of-residence line is the whole ballgame for out-of-state merchants
Chapter 281 of the Laws of 2019 amended CPLR 3218 to require the affidavit to identify the county where the defendant resided when it was executed, to confine filing to that county, and to bar entry against a defendant who did not reside in New York at that time. If you lived outside New York when you signed, this is the first line we check.
- The sum confessed was never adjudicated
It typically carries default fees, an accelerated balance and interest that no judge has looked at. That matters less than the threshold defects, but it matters once a payoff number is on the table.
- The facts have to actually be stated
CPLR 3218(a)(2) requires a concise statement of the facts out of which the debt arose, showing that the sum confessed is justly due. Boilerplate that recites nothing can be attacked on the face of the record.
- There is no summons, no complaint, no appearance, no hearing
The clerk enters it. That is why the first you hear of it is usually a restrained account rather than a piece of mail, and why the clock you care about is CPLR 5015 and the restraint, not an answer date.
Send the affidavit and the funding agreement together. Where you lived when you signed it is the first question, and it is often answerable in a minute.
The first three days, and day 21
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Hour 0
Pull the clerk's file
Affidavit of confession, funding agreement, affidavit of amount due, the entered judgment. The court papers you are missing, we pull from the county clerk.
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Day 1 to 3
Draft the motion
A CPLR 5015(a) motion to vacate on the residency, venue and sum-certain grounds, with a stay of enforcement requested in the same papers.
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Day 3 onward
Stop the bleeding while it is pending
Restraints, information subpoenas and levies already underway are addressed in the same application so a win is not academic.
Frequently asked
Yes. That is the entire point of the instrument. Under CPLR 3218 the funder files your signed affidavit with a county clerk, together with an affidavit stating the amount due, and the clerk enters judgment. It is a clerical act, not a ruling. No judge reviews the merits and you are never served with a summons.
Because before the 2019 amendment to CPLR 3218, funders routinely took confessions from out-of-state merchants and filed them in New York counties of their own choosing. Chapter 281 of the Laws of 2019 changed that: the affidavit must identify the defendant's county of residence, filing is confined to that county, and entry against a defendant who did not reside in New York when the affidavit was signed is barred.
If your judgment was entered after that amendment and you were not a New York resident, that is a defect on the face of the record.
It depends entirely on the ground. Where the ground is excusable default, CPLR 5015(a)(1) gives you one year from service of the judgment with notice of entry. Where the defect goes to the clerk's authority to enter the judgment in the first place, that one-year window does not control.
None of which is a reason to wait. Enforcement continues while you think about it, and delay is something courts weigh.
An order vacating the judgment removes its legal effect and is filed with the clerk. Correcting downstream records (commercial credit reports, lien search databases, UCC indexes) is a separate cleanup step that we handle as part of the engagement, because a vacated judgment that still shows up on a search can still block your next bank loan.
Funding agreements contain broad waivers, and some of them are enforceable. But a waiver cannot supply a statutory predicate that does not exist. If the clerk had no authority to enter the judgment (wrong county, non-resident defendant, no sum certain in the affidavit), a contractual waiver does not cure that.
Send us the affidavit you signed.
Most grounds for vacating the judgment can be seen in the affidavit of confession and the funding agreement. The review is free and it takes us hours, not weeks.