Q: Is the amount of exemption from wage garnishment based upon the New York State minimum wage or the Federal minimum wage?
Mitchell’s Answer: In New York, the amount of the exemption is determined by whichever minimum wage rate is higher.
Q: Is a debt collections lawyer allowed to obtain my personal bank account information?
Mitchell’s Answer: Once a judgment has been entered against you then lawyers for the creditor may serve an Information Subpoena upon your bank and the bank is obligated to provide certain information requested.
Q: How long can the creditor's attorney pursue me to collect on a civil judgment entered in New York State?
Mitchell’s Answer: The judgment may be enforced against personal property for 20 years and will extend each time a payment is made for an additional 20 years.
Q: The Sheriff of Suffolk County sent me a letter that I have 20 days to pay or they will contact my employer on an Income Execution. Is that legal?
Mitchell’s Answer: If a judgment was entered against you, then it is entirely legal. If you were not served with a Summons and Complaint to commence the action, then you should review the affidavit of service at the courthouse and then file and request an Order to Show Cause to vacate the default judgment entered against you.
Q: Can I be arrested for not paying my debt?
Mitchell’s Answer: Although there is no debtors’ prison, if you ignore demands to provide information as to your financial ability to pay, then you could wind up arrested. The debt collections lawyer could make a motion that you be held in contempt of court and if you don’t respond, the Judge could issue a warrant for your arrest as punishment for failure to comply with discovery demands.
Q: The statute of limitations has expired. Will the "Acknowledgement Doctrine" revive a civil judgment?
Mitchell’s Answer: Once the statute has expired, the burden of proof shifts to the creditor to prove it has been revived by an acknowledgement of the debt. The simplest way to do so is to prove partial payment on account of the debtor absent a demand by the creditor. In such a case, the statute of limitations may be extended.
Q: I paid a judgment that was subsequently vacated on my motion. How do I get a refund?
Mitchell’s Answer: You must file a Notice of Entry of the Order upon the Creditor’s attorney with an affidavit of service to be filed with the clerk. The Plaintiff has 30 days to comply or appeal. If they fail to do so you may make a post-disposition motion.
Q: How do I collect a judgment against a debtor who is “judgment proof” or otherwise exempt?
Mitchell’s Answer: Article 52 of the CPLR discusses various judgment enforcement mechanisms. Just because all visible assets of the judgment debtor are currently exempt, doesn’t mean that will always be the case. You have 20 years to enforce the judgment and a debtor may get lazy in secreting their assets or their income situation could improve over time. A debt collections lawyer may have the ability to locate and restrain assets.
Q: A debtor signed a “confession of judgment” and then transferred his house to his parents. What can I do?
Mitchell’s Answer: There may have been a fraudulent conveyance and the transfer may be voidable. You should retain an experienced lawyer to bring an Order to Show Cause against the parties to the fraud and the County Clerk.
Q: A judgment was entered against me nine years ago and nothing happened since then until my wages were garnished. Is this allowed?
Mitchell’s Answer: If you were properly served with the Summons & Complaint then the debt collection attorney may serve an income execution upon an enforcement officer (Marshal or Sheriff) and 10% of your earnings may be deducted from your paycheck. If you were not properly served, you should file and serve an order to show cause to vacate the default judgment. If the court were to rule that service was improper, the statute of limitations will have expired and the creditor will not be able to recommence an action.