Debt Collection and Judgment Enforcement

Transcription

1 New York Lawyers Practical Skills Series Debt Collection and Judgment Enforcement William Ilecki, Esq.* * This monograph was originally written by Jack Getman, Esq., and substantially revised and updated by the late Paul A. Peters, Esq. William Ilecki, Esq., has been the update author since NEW YORK STATE BAR ASSOCIATION

2 New York State Bar Association publications are intended to provide current and accurate information to help attorneys maintain their professional competence. Publications are distributed with the understanding that NYSBA does not render any legal, accounting or other professional service. Attorneys using publications or orally conveyed information in dealing with a specific client s or their own legal matters should also research original sources of authority. We consider the publication of any NYSBA practice book as the beginning of a dialogue with our readers. Periodic updates to this book will give us the opportunity to incorporate your suggestions regarding additions or corrections. Please send your comments to: CLE Publications Director, New York State Bar Association, One Elk Street, Albany, NY Copyright 2017 New York State Bar Association All rights reserved ISBN: Product Number:

3 CONTENTS PART ONE: DEBT COLLECTION I. Forwarders... 1 II. Commercial Law League of America and Law Lists... 2 III. Attorney Fees... 2 IV. Fees for Defending a Counterclaim... 3 V. Disbursements... 4 VI. Receiving the Claim... 4 VII. Evaluating the Claim... 5 VIII. Evaluating the Debtor... 7 A. Client s File... 8 B. Directories... 8 C. Court Records Judgments, Deeds and Liens Security Agreements and Federal Tax Liens Motor Vehicle Lien Search Tax Assessor s Office... 9 D. Employment Confirmation... 9 E. Bank Accounts... 9 F. Law Journals G. Previous Experience H. Private Detectives I. Local Sheriff s Office J. Asset Locate Firms K. Online Search Engines IX. Identifying the Debtor X. Restrictions on Debt Collection A. New York Regulations B. Communication in Connection With Debt Collection Under the FDCPA C. FDCPA Update D. False or Misleading Representations E. Unfair Practices F. Claims Against Estates G. Damages (Civil Liability) XI. Demand Upon the Debtor A. Purpose of Demand B. Written Demand C. Telephone Demands XII. Payment Agreements XIII. Alternatives to Litigation A. Confessions of Judgment B. Stipulations of Settlement C. Arbitration iii

4 XIV. Instituting Suit A. Jurisdictional Limits B. Where Defendant Can Be Served C. Venue D. Consumer Credit Transactions E. Open-End Credit Transaction Original Creditor Plaintiff F. Commercial Divisions of Supreme Court XV. Preparing the Pleadings A. Summons With Notice B. Summons With Endorsed Complaint C. Summons and Complaint D. Verification E. Summons and Motion for Summary Judgment in Lieu of Complaint XVI. Service of Process A. Who May Serve and When B. Service of Process Upon a Natural Person Personal Delivery Delivery and Mailing Agent for Service Nailing and Mailing Court-Directed Service C. Service Upon a Corporation and Limited Liability Company D. Personal Service Upon a Partnership E. Personal Service Outside New York State F. Affidavit of Service G. Filing of Proof of Service H. Additional Notice Required to Be Filed in Some Cases Individuals Corporations I. Personal Service by Mail J. Time to Answer XVII. Entry of Default Judgment A. Rules for the District Courts B. Severance C. Interest Rates XVIII. Pre-Judgment Remedies Appendix A: H.R (Apr. 3, 2017) Debt Collection Forms Index PART TWO: JUDGMENT ENFORCEMENT I. Introduction A. Compliance with Consumer Protection Statutes B. General Overview of CPLR Article II. Obtaining Information to Enforce the Judgment iv

5 A. Important Factors Informal Proceedings Formal Proceedings Scope of Statutory Authority B. Information Subpoena CPLR C. Subpoena Duces Tecum CPLR D. Contempt/Compel Compliance Conduct Subject to Contempt Venue Procedures a. Jurisdiction b. Service c. Hearing Damages Warrant III. Actions Against Property A. Judicial Liens on Real Property Obtaining the Lien Priority Duration Tenancy by Entirety B. Restraining Notice Form and Issuance Notice to Judgment-Debtor Effect of the Restraining Notice a. Generally b. Bank Accounts i. CPLR 5222(h) ii. CPLR 5222(i) iii. CPLR 5222(k) iv. CPLR 5222-a Penalties for Non-Compliance Federal Regulations C. Property Execution General Provisions a. Bank Accounts Against Natural Persons b. Out-of-State Assets c. Miscellaneous Property Subject to Execution Priorities Extensions Sheriff s Poundage Real Property Execution a. Sale of Judgment-Debtor s Residence Receiver D. Turnover Proceeding Joint Bank Account Fraudulent Conveyance E. Income Execution Amount Subject to Income Execution v

6 2. Federal Employees Support Executions and Orders Priorities Service of an Income Execution Stages Installment Payment Orders F. Exemptions Burden of Proof a. Bank Accounts Types of Exemptions IV. Miscellaneous Provisions A. Civil Arrest B. Modification or Protective Order C. Satisfactions of Judgment Judgment Enforcement Forms Index Table of Authorities About the Author

7 INDEX OF FORMS* Written Demand to Commercial Debtor Written Demand to Consumer Debtor Written Demand to Corporate Debtor and Guarantor Postal Search Confirming Letter Affidavit of Confession of Judgment Alternate Affidavit of Confession of Judgment Stipulation of Settlement Default Affirmation and Order Summons City Court Summons Complaint (Goods Sold and Delivered) Verified Complaint (Promissory Notes) Affidavit of Proof of Service Affirmation of Mailing of Summons (CPLR 3215(g)) Statement of Service by Mail and Acknowledgment of Receipt Additional Notice of Consumer Credit Action (N.Y.C. Civil Court) Additional Notice (Courts Outside N.Y.C.) Affidavit of Facts by Original Creditor Affidavit of Facts and Sale of Account by Original Creditor Affidavit of Purchase and Sale of Account by Debt Seller Affidavit of Facts and Purchase of Account by Debt Buyer Plaintiff Affirmation of Non-Expiration of Statute of Limitations Statement for Judgment Order to Sever Affirmation in Support of Plaintiff s Claim for Attorneys Fees Order Awarding Attorneys Fees Supplemental Attorney Fee Affirmation Summons and Motion for Summary Judgment in Lieu of Complaint; Judgment and Order * Some of the forms contained in this Part One are omitted from the downloadable forms accompanying this publication because they are available from government agencies. These forms are obtainable from the following government agency: the New York State Unified Court System ( ) <

8 Affidavit of Mailing (Natural Person) CPLR 3215(g) Additional Mailing Notice (Corporation) CPLR 3215(g) Affidavit Mailing Notice (Corporation) CPLR 3215(g) Request for Judicial Intervention Request for Judicial Intervention Addendum Commercial Division Request for Judicial Intervention Addendum Extension of Time to Serve (CPLR 306-b)