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The Gilmer Law Firm, PLLC

Tuesday, October 30, 2012

How do I get my bank account released after it has been frozen by a creditor? 718 864 2011 By Brooklyn, New York City Credit Repair Attorney

 

Default Judgments, Vacatur, Settling your debt and Credit Score

A judgment is the court's written, final decision in the case. If you have a judgment against you in the State of New York, the law might be on your side and you might be able to reopen your case and even under some circumstances dismiss the matter against you. The ability to vacate a judgment against you is a powerful tool and can help you avoid a drastic measure such as Bankruptcy (click here about more information about bankruptcy) and can give you increased bargaining power in settling your debt by Stipulation. Furthermore, once you vacate a judgment against you and dismiss the case, you will clean your credit and improve your credit score.

Most of my clients come to me in my Brooklyn Law Office (click here for my office location, Room 314) in desperation because their bank accounts have been frozen and they have discovered that a default judgment was entered against them in Court. When a Defendant fails to appear in court ("defaults") the court will issue a judgment against the Defendant. Most of my clients ask me, “George, how could this happen? I was never served with any papers.” I have vacated multiple judgments in Brooklyn, Bronx, Manhattan, Queens and Staten Island.

Wage Garnishments and Order to Show Cause

The good news is that we can file either a Motion to Vacate or an Order to Show Cause seeking to vacate the judgment (both will be referred to as a “motion” from here on) and also request the lifting of any restraints on bank accounts and wage garnishments. This generally means that the client’s money will be freed and that the weekly or bi weekly deductions will cease during the lifetime of the motion. The law that covers the vacating of most judgments in New York is CPLR 5015(a). The party that has a Judgment against them can file the above mentioned motions in the Court where the Judgment was obtained. The Court can relieve a party of a Judgment on numerous grounds.

Excusable Default

One of the grounds is excusable default. This has to be done within one year of the service on you of the copy of the notice of the judgment or within one year of the entry of the judgment. If you were not served with the copy of your judgment then arguably your time to file the motion has not started. You will have to show a reasonable excuse and meritorious defense to prevail in this motion, and present excuse in a document called an Affidavit of Merit. Prior to filing this motion you should check the Court file (if, for example the Judgment was entered against you in Kings County [Brooklyn]  Civil Court, you check that Court house)  for the Affidavit of Service.  The Affidavit of Service is the document filed with the Court that indicates the place, date  and time that you were originally allegedly served with the Court papers and also contains a description of the person served.

EXAMPLES OF EXCUSABLE DEFAULT

A good example of an excusable default is that you never received the papers telling you to come to Court (also see below for Jurisdictional Defenses). If you have been served with legal papers, called service of process, you generally have twenty to thirty days to appear and put in an answer to the Summons and Complaint. If you don’t, you will be held in default.  For example, if a person files suit against you in the State of New York, in the Supreme Court, and you are served in person in Brooklyn, you have twenty days to respond. Another reasonable excuse maybe that you were sick, out of town, or incarcerated. 

MERITORIOUS DEFENSE

The meritorious defense is also a necessary element. The most obvious defense is that you don’t owe the money for some reason. This could be because of:

  • identity theft,
  • you were never notified about the debt (nor provided validation thereof),
  • the Statute of Limitation on your debt has run,
  • a mistake by the person suing you in calculating the money owed,
  • that you were only an authorized user on the credit card,
  • that you filed for bankruptcy or
  • that you never had a business relationship with the party in question.

Another defense that most be added to your motion is the general defense that the Court did not have jurisdiction over you to enter the judgment against you in the first place. This is CPLR 5015(a)(4). Here, a meritorious defense should not be required by the Court (although some judges do, your meritorious defense should be included nevertheless) and raises a Constitutional issue, Notice and Opportunity to be Heard. I made this argument in a civil case in Brooklyn (Kings) Civil Court , after filing an Order to Show Cause and the Judge not only vacated the judgment, but dismissed the case based on failure to serve within 120 days (see below) and the bank ended up having to pay back my client the $20,000 it took out of my his account.

The other less common ground used are CPLR 5015(a)(2).   This applies to "newly discovered evidence" which if introduced at trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial. The moving party needs to thus show a very good excuse for not presenting the evidence at the time of trial. There are not many excuses for failing to produce evidence at trial.

Another reason to reopen a judgment is because it was obtained by fraud, misrepresentation, or other misconduct of the party that has the judgment.

CREDIT REPAIR BY SETTLING DEBT

Finally there are situations where both sides can mutually agree to vacate a default by Stipulation of Settlement. This is often used when the sides have negotiated a settlement of the debt owed. The vacating of a judgment after it was entered is an important device used to clean someone’s credit of derogatory information. My advice is if you want to settle your debt with say, a credit card company, it is advisable before you make payment to get an agreement from the company to vacate the judgment by Stipulation so that the derogatory information on your credit report is removed.  In my practice, although I am a Brooklyn, New York City based attorney, I have settled debt with companies located across the United States, as long as they have filed suit in New York State. Although I  prefer to settle cases out of Court, sometimes I have to file an Order to Show Cause to get the Creditor in Court, where they will most likely to settle to avoid the cost of litigation.

AFFIDAVIT OF SERVICE

Whenever a motion is present where lack of service is alleged, the Plaintiff will have the burden to come with up with an Affidavit of service which serves as prima facie proof of service. It is always wise to look at the copy of the Affidavit of Service prior to filing any motion, so the allegations contained in that Affidavit of Service can be scrutinized by you and your attorney and you can rebut the allegations of service in your Affidavit of Merit.  Thus even if the Plaintiff presents an Affidavit of Service, if your moving papers successfully rebut the Affidavit of Service then you will be entitled to what is called a Traverse Hearing, where your attorney will have the opportunity to cross examine the process server that filed the Affidavit of Service.  In order to get this hearing you must include the Affidavit of Merit, or your motion will be dismissed. Furthermore, this document must be properly done, thus it  is wise to hire an Attorney that specializes in this type of work.  A am a Brooklyn Credit Repair Attorney and would be happy to give you a free phone consultation on this issue.

There has been a great deal of litigation over service and there have been many cases where service never took place, but Affidavits of Service were filed by the Plaintiff nevertheless. This is considered fraud and can lead to very serious consequences for the filer.  

120 DAYS TO SERVE RULE

Most importantly, the Plaintiff, if they can’t prove that service was ever effectuated, and 120 days have passed since the Summons and Complaint was filed, you can move to have the case dismissed for failure to serve within the proper timeframe. This is huge if the Statute of Limitations has run on your case because then, you cannot be sued again. If the Statute of Limitations hasn’t run, then the Plaintiff will generally be allowed to refile.

In conclusion, if you have a judgment against you, your bank account is frozen and your wages have been garnished, you can file an Order to Show Cause in the Court that has the Judgment against you to attempt to Reopen or even dismiss the judgment against you. The mere filing of the Order to Show Cause or Motion to Vacate will increase your bargaining power in negotiating the settlement of your debt.  If you have any other questions regarding this matter, feel free to contact me, George M. Gilmer, Esq.  for a free phone consultation. 718 864 2011


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