I have a judgment against me that was awarded to a collection attorney who restrained my bank accounts at two different banks. The first was just removed (after two months) as it is illegal to restrain my social security income per the CPLR section 5222. I believe the second levy is illegal also, because the CPLR section 5222(c) states that he is only allowed to restrain a person once per judgment. I intend to attempt to have the judgment vacated by either a motion to vacate or show cause order but, I want the second restraining notice removed so I can hire attorney for this and a lawsuit against the attorney for violations to the CPLR and numerous violations of the FDCPA. I have a few questions that I would like answered.
1. Can I quash a levy (restraining notice) that violates the CPLR? This would be to recover some of my money.
2. Should I do a Motion to Vacate or a Show Cause order to Vacate?
3. Is there a site that will explain how to do a Show Cause order to Vacate?
4. What is the proper venue for bringing a case against the attorney for violations of the CPLR and FDCPA.

I am sure I have more questions, but they depend on answers above.

Sorry for the delayed response but I just joined this site. I am a professional skip tracer and court money judgment enforcer coincidentally doing tons of this work in New York state. I am not an attorney.

It is probably too late for this member to act on this information but for the purpose of helping others perhaps this may help.

In the situation you described, you are correct in that by both state (NY) and federal laws money derived directly from ANY EXEMPT SOURCE (social security, disability, unemployment, etc.) is exempt. This comes with a qualification. Let's say you are frugal and can accumulate a sizeable "nest egg" - for purposes of this post let's say you have $5,000 socked away in XYZ bank. Assuming that you can show that NO OTHER SOURCE of this money is proveable (e.g. all of the money was direct deposited from the source that is exempt), there are methods in which the creditor pro se (or his/her/its attorney) can make lawfully restrain the money pending a proceeding in court.

Having said that, let's back up a bit. Forgetting about alimony and/or child support derived court money judgments, CPLR section 5222 et seq. REQUIRES a garnishee, a bank, credit union, stock brokerage, self-service storage facility, or ANY third party in possession of either money or other thing of value (contents of a storage facility) to withhold up to twice the amount of the court judgment. Under 5222 a garnishee who withholds up to twice the amount of the judgment is indemnified (held harmless).

Having said that we turn to your situation where two banks/credit unions, etc. have funds or some other relationship where they are in possession of a ssets belong to you (the judgment debtor). Let say the judgment amount is $2,000 and you have $5,000 in each bank total (checking, savings, safe deposit box, etc.) Neither bank knows that the other has complied and held twice the amount or $4,000. The only one who knows this might be the attorney for the creditor. Depending upon the bank and also depending upon if the attorney served an "information subpoena" with questions pursuant to CPLR section 5224 et seq. it could take in some cases more than a week AFTER the bank freezes the account(s) for the attorney to know about the two institutions.

The next issue is the exemption. It is the responsibility of the judgment debtor to notify the attorney of record/creditor pro se to establish any exemption. That means that YOU are the one who must take action to assert any exemption(s) which you are claiming.

To do that, if I were you, I'd simply call the attorney's office and speak to a member of his/her staff. Most attorneys who do collection work have a staff trained to know and be able to tell you what their particular office's procedure is -- most of the time where if you follow their direction, they can quickly and without court intervention, get the exempt property (bank accounts) released within a few hours to perhaps a day.

Usually they have a form which you will have to fill out and sign before a notary (attesting to the truthfulness of your statements under the penalties of perjury). The also usually ask that you produce a copy of a decision, notarized statement, or other similar document showing your entitlement to the claimed exemption. (SSDI decision showing that you are permanently disabled and entitled to SSDI).

If the attorney or his/her staff refuses to provide this form or direct you to send on a plain sheet of paper this information notarized, then you simply put a letter together stating your name, current mailing and physical address, telephone numbers (both cell and home), creditor/plaintiff, and amount of judgment. If you have a copy of the restraining notice include it. If you don't have it get it from your bank by going into your branch. Get the decision or other proof of your entitlement to the claimed exemption. Then either physically go to the attorney's office or mail it via certified mail return receipt requested. My recommendation is if the attorney's office isn't too far away from you, GO THERE!

If within a reasonable time the attorney does not release the exempt amount (in the example anything over twice the amount of the judgment or $4,000) say within a week, then you have to get busy!

If you live in NYC, and the court judgment was obtained from a civil court within NYC, strangely enough these courts have a pro se clerk or other person that will help you. They have forms in english and Spanish (and perhaps other languages). In general, you simply have to state in plain language the issues - judgment, restraint, and facts proving the exemption(s) claimed. Once submitted a judge mist sign the order to show cause which sometimes is done while you wait, while in most cases might take a few days.

In general, a Judge will not order the account released until such time as the other side (the attorney) has had an opportunity to be heard. This means that the judge will order all parties to come into court "to be heard" on a date/time shorter than 20 days. During this time, its status quo - everything stays the same.

However, most attorneys once in receipt of the order to show cause and supporting papers which you will have to effectuate on the attorney pursuant to the direction of the judge (or clerk of the court), in almost every case, the attorney will voluntarily release what he/she thinks is exempt and will not release what is believe to be non-exempt. In the example $4,000 in only one bank would be held the remainder released.

Only assuming that the attorney does not release the exempt money, AND the court finds in your favor that the attorney/credit pro se acted in bad faith, then and only then can you start to take action against the attorney/creditor pro se.

In the case of the creditor pro se, only the judge can order penalties to be imposed. It is rare that it is ever done except on a strong showing of bad faith. Even ignorance in the case of a pro se creditor have I in more than 40 years in this field ever seen a pro se creditor held in contempt or penalized in every way! The judges tend to lean towards the creditor pro se in every case -- even ignorance doesn't usually move the judge -- especially in New York State which is consider a "creditor's state" (compared to Texas or Florida). It does not hurt to put in your request for relief before the court that you wish to be "compensated" or that the creditor pro se, creditor, attorney for creditor be "penalized" or otherwise "compensate" you. Show what harm came to you -- you were unable to pay your rent on time and the landlord pursuant to a written lease imposed a penalty against you or worse you had to defend an eviction proceeding. Don't count on the heavens raining in any penalty, but it is always good and prudent to try anyway!

If the attorney didn't act prior to the court hearing or your initial written demand for release, consider filing a complaint with the attorney "Grievance Committee" - do not bother complaining to the state or local bar association. In New York that are various state run committees that investigate attorneys/law firms and determine if any misconduct took place. Every attorney's nightmare is to be the subject of any complaint before one of these committees, even if he/she/it is found innocent of any misconduct. You should call around to determine which office to file it in, but do it if the attorney made you go to court to help others because the attorney has a lawful obligation as "an officer of the court" to release the exempt funds.

In addition, complain to the state and local (usually county) consumer affairs offices (e.g. State Attorney General, Federal Trade Commission, etc.) if you had to go to court as above. In NYC - the agency with the most "teeth" is the NYC Dept. of Consumer Affairs. If you live in NYC and this is a consumer credit transaction (e.g. credit card, etc.), the collection agency must be licensed by the NYC Dept. of Consumer Affairs. If their office is in NYC and cloes enough to go there for you, GO THERE before any legal action is takes against you so it doesn't go this far (restraint of accounts, etc.) Talk to them and work out a payment plan BEFORE it goes any further. Make sure you try to get them and the creditor to not to notify any credit reporting agencies of anything derogatory if you comply with a written agreement.

In general, unless you know your way around the courts, try to work out arrangements with all of your creditors or their collection agencies. Don't delay. Try offering a payback plan. However, be advised they are NOT REQUIRED to offer or agree to a plan! Offer to sign a written agreement. Insist on it be in writing in either case.

Be advised that in today's economic climate, creditors will be stepping up their efforts more and more, so expect that if you let matters go to a court judgment, that you will not be able to avoid paying most debts even say back rent from a landlord that evicted you and neither of you will ever do business again together!

Good LOOK!

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