The Oct. 23 Outside Counsel by Harvey Stuart and David Miller, “Use and Misuse of Judgments by Confession to Enforce Settlements,” while presenting a well researched dissertation on cognovits and warranties of attorneys, misguides a creditor’s attorney as to the proper and practical procedure for settling their client’s claim. When drafting a settlement agreement in a pending action, the confession of judgment as a device should be ignored, along with the authors’ admonition to “consult CPLR §3218 when drafting a confession of judgment.”
The quoted language in the article’s affidavit of confession that “Defendant hereby waives the issue and service of process” was prompted by the proviso discontinuing the action before the commencement of payments. However, in the absence of extreme circumstances, no knowledgeable attorney would advise his client to discontinue the action before full payment. The proper, more effective and simpler procedure would be to provide for the entry of a judgment upon a default (however that term may be defined), with or without further notice.
