In Evans v. Ottimo,1 the U.S. Court of Appeals for the Second Circuit held that a New York state default judgment could be the basis for invoking the doctrine of collateral estoppel in the U.S. Bankruptcy Court. What is meant by a “default judgment” in the context of this article is a judgment issued after a litigant has failed to respond to a complaint. Prior to the Evans decision it was thought that a New York state default judgment could not be the basis for applying the doctrine of collateral estoppel because the fair and full opportunity to litigate requirement was not satisfied.2

Under Evans the full and fair opportunity to litigate requirement under New York law is met when a defendant was properly served and had the opportunity to defend against the claim. Evans does not require that a litigant appeared in the litigation and subsequently defaulted. Evans is an important case for civil litigators and bankruptcy practitioners because of its impact on the utilization of the doctrine of collateral estoppel in bankruptcy litigation. As discussed herein, under the Evans decision a litigant is ill-advised to intentionally default in a New York state court litigation with the expectation that he or she will be able to relitigate the issues encompassed in the default judgment in the U.S. Bankruptcy Court.

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