Tuesday, August 10, 2010

How can I stop a restraining notice, garnishment, or wage execution?

If you owe someone or some company money, or if someone or some company claims you owe them money, you can be sued in court and if you lose, can have a judgment entered against you. There are times when people get judgments against them that they have no knowledge of. The first time a person may realize they have a judgment against them is when the bank freezes their account or their employer enforces an income execution order against this person's paycheck. In order to stop an income execution, garnishment, or restraining notice, you must either satisfy your debt or vacate the judgment against you. There are many ways to vacate a judgment but I will talk about the Courts power to do so under CPLR 5015. Under this section, one of the ways you can vacate a judgment is if you have a reasonable excuse for your failure to appear in court and a meritorious defense. One meritorious defense is that you were never served with a Summons and Complaint (or Summons with Endorsed Complaint).

The affidavit of service filed with court is the first place to look to determine will say that you were served by virtue of the Plaintiffs delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served. The affidavit of service may also say that you were served by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served. This type of service can only be done where personal service or substituted service cannot be made after due diligence.

If you can prove that you were not served at all, the court can, even without a showing of a meritorious defense, vacate the judgment against you and if more than 120 days have elapsed since the index number was purchased, dismiss the complaint against you. If the statute of limitations to sue you has passed then, you cannot be sued again. In the papers, I always include a meritorious defense just in case the court is not inclined to dismissal. A meritorious defense should be very detailed but should always start with you denying the existence of the debt claimed as owed.

If you want to vacate a judgment against you, call my office. I can get your paperwork done within 24 hours or less if necessary.