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.
Tuesday, August 10, 2010
Tuesday, March 9, 2010
What can I expect at the 341 Meeting of the Creditors? By Brooklyn Bankruptcy Lawyer
I am an experienced Brooklyn Bankruptcy Attorney. Many people that have filed for Bankruptcy wonder what questions will be asked at the 341 Meeting of the Creditors. Below is a list, for those interested, to give you a basic idea of what questions will be asked at this meeting.
1. State your name and current address for the record.
2. Please provide your picture ID and Social Security number card for review.
a. If the documents are in agreement with the ' 341(a) meeting notice, a suggested statement for the record is:
AI have viewed the original State of ________ drivers license (or other type of original photo ID) and original Social Security card (or other original document used for proof) and they match the name and Social Security number on the ' 341(a) meeting notice.@
b. If the documents are not in agreement with the ' 341(a) meeting notice, a suggested statement for the record is:
AI have viewed the original Social Security card (or other original document used for proof) and the number does not match the number on the ' 341(a) meeting notice. I have instructed the debtor (or debtor=s counsel) to submit to the court an amended verified statement by [date], with notice of the correct number to all creditors, the United States Trustee, and the trustee; and to file with the court a redacted copy of the notice, showing only the last four digits of the Social Security number, and a certificate of service.@
c. When the documents do not match the petition, the trustee shall attempt to ascertain why and shall report the matter to the United States Trustee.
.
d. If the debtor did not bring proof of identity and Social Security number, the trustee shall determine why.
3. Did you sign the petition, schedules, statements, and related documents and is the signature your own? Did you read the petition, schedules, statements, and related documents before you signed them?
4. Are you personally familiar with the information contained in the petition, schedules, statements and related documents? To the best of your knowledge, is the information contained in the petition, schedules, statements, and related documents true and correct? Are there any errors or omissions to bring to my attention at this time?
5. Are all of your assets identified on the schedules? Have you listed all of your creditors on the schedules?
6. Have you previously filed bankruptcy? (If so, the trustee must obtain the case number and the discharge information to determine the debtor(s) discharge eligibility.)
7. What is the address of your current employer?
8. Is the copy of the tax return you provided a true copy of the most recent tax return you filed?
9. Do you have a domestic support obligation? To whom? Please provide the claimant=s address and telephone number, but do not state it on the record. Are you current on your post-petition domestic support obligations?
10. Have you filed all required tax returns for the past four years?
SAMPLE GENERAL QUESTIONS
(To be asked when deemed appropriate.)
1. Do you own or have any interest whatsoever in any real estate?
If owned: When did you purchase the property? How much did the property cost? What are the mortgages encumbering it? What do you estimate the present value of the property to be? Is that the whole value or your share? How did you arrive at that value?
If renting: Have you ever owned the property in which you live and/or is its owner in any way related to you?
2. Have you made any transfers of any property or given any property away within the last one year period (or such longer period as applicable under state law)?
If yes: What did you transfer? To whom was it transferred? What did you receive in exchange? What did you do with the funds?
3. Does anyone hold property belonging to you?
If yes: Who holds the property and what is it? What is its value?
4. Do you have a claim against anyone or any business?
If there are large medical debts, are the medical bills from injury?
Are you the plaintiff in any lawsuit?
What is the status of each case and who is representing you?
5.Are you entitled to life insurance proceeds or an inheritance as a result of someone's death?
If yes: Please explain the details.
If you become a beneficiary of anyone's estate within six months of the date your bankruptcy petition was filed, the trustee must be advised within ten days through your counsel of the nature and extent of the property you will receive. FRBP 1007(h)
6. Does anyone owe you money?
If yes: Is the money collectible? Why haven't you collected it? Who owes the money and where are they?
7. Have you made any large payments, over $600, to anyone in the past year?
8. Were federal income tax returns filed on a timely basis? When was the last return filed?
Do you have copies of the federal income tax returns? At the time of the filing of your petition, were you entitled to a tax refund from the federal or state government ?
If yes: Inquire as to amounts.
9. Do you have a bank account, either checking or savings?
If yes: In what banks and what were the balances as of the date you filed your petition?
10. When you filed your petition, did you have:
a. any cash on hand?
b. any U.S. savings bonds?
c. any other stocks or bonds?
d. any certificates of deposit?
e. a safe deposit box in your name or in anyone else's name?
11. Do you own an automobile?
If yes: What is the year, make, and value? Do you owe any money on it? Is it insured?
12. Are you the owner of any cash value life insurance policies?
If yes: State the name of the company, face amount of the policy, cash surrender value, if any, and the beneficiaries.
13. Do you have any winning lottery tickets?
14. Do you anticipate that you might realize any property, cash or otherwise, as a result of a divorce or separation proceeding?
15. Have you been engaged in any business during the last six years?
If yes: Where and when? What happened to the assets of the business?
1. State your name and current address for the record.
2. Please provide your picture ID and Social Security number card for review.
a. If the documents are in agreement with the ' 341(a) meeting notice, a suggested statement for the record is:
AI have viewed the original State of ________ drivers license (or other type of original photo ID) and original Social Security card (or other original document used for proof) and they match the name and Social Security number on the ' 341(a) meeting notice.@
b. If the documents are not in agreement with the ' 341(a) meeting notice, a suggested statement for the record is:
AI have viewed the original Social Security card (or other original document used for proof) and the number does not match the number on the ' 341(a) meeting notice. I have instructed the debtor (or debtor=s counsel) to submit to the court an amended verified statement by [date], with notice of the correct number to all creditors, the United States Trustee, and the trustee; and to file with the court a redacted copy of the notice, showing only the last four digits of the Social Security number, and a certificate of service.@
c. When the documents do not match the petition, the trustee shall attempt to ascertain why and shall report the matter to the United States Trustee.
.
d. If the debtor did not bring proof of identity and Social Security number, the trustee shall determine why.
3. Did you sign the petition, schedules, statements, and related documents and is the signature your own? Did you read the petition, schedules, statements, and related documents before you signed them?
4. Are you personally familiar with the information contained in the petition, schedules, statements and related documents? To the best of your knowledge, is the information contained in the petition, schedules, statements, and related documents true and correct? Are there any errors or omissions to bring to my attention at this time?
5. Are all of your assets identified on the schedules? Have you listed all of your creditors on the schedules?
6. Have you previously filed bankruptcy? (If so, the trustee must obtain the case number and the discharge information to determine the debtor(s) discharge eligibility.)
7. What is the address of your current employer?
8. Is the copy of the tax return you provided a true copy of the most recent tax return you filed?
9. Do you have a domestic support obligation? To whom? Please provide the claimant=s address and telephone number, but do not state it on the record. Are you current on your post-petition domestic support obligations?
10. Have you filed all required tax returns for the past four years?
SAMPLE GENERAL QUESTIONS
(To be asked when deemed appropriate.)
1. Do you own or have any interest whatsoever in any real estate?
If owned: When did you purchase the property? How much did the property cost? What are the mortgages encumbering it? What do you estimate the present value of the property to be? Is that the whole value or your share? How did you arrive at that value?
If renting: Have you ever owned the property in which you live and/or is its owner in any way related to you?
2. Have you made any transfers of any property or given any property away within the last one year period (or such longer period as applicable under state law)?
If yes: What did you transfer? To whom was it transferred? What did you receive in exchange? What did you do with the funds?
3. Does anyone hold property belonging to you?
If yes: Who holds the property and what is it? What is its value?
4. Do you have a claim against anyone or any business?
If there are large medical debts, are the medical bills from injury?
Are you the plaintiff in any lawsuit?
What is the status of each case and who is representing you?
5.Are you entitled to life insurance proceeds or an inheritance as a result of someone's death?
If yes: Please explain the details.
If you become a beneficiary of anyone's estate within six months of the date your bankruptcy petition was filed, the trustee must be advised within ten days through your counsel of the nature and extent of the property you will receive. FRBP 1007(h)
6. Does anyone owe you money?
If yes: Is the money collectible? Why haven't you collected it? Who owes the money and where are they?
7. Have you made any large payments, over $600, to anyone in the past year?
8. Were federal income tax returns filed on a timely basis? When was the last return filed?
Do you have copies of the federal income tax returns? At the time of the filing of your petition, were you entitled to a tax refund from the federal or state government ?
If yes: Inquire as to amounts.
9. Do you have a bank account, either checking or savings?
If yes: In what banks and what were the balances as of the date you filed your petition?
10. When you filed your petition, did you have:
a. any cash on hand?
b. any U.S. savings bonds?
c. any other stocks or bonds?
d. any certificates of deposit?
e. a safe deposit box in your name or in anyone else's name?
11. Do you own an automobile?
If yes: What is the year, make, and value? Do you owe any money on it? Is it insured?
12. Are you the owner of any cash value life insurance policies?
If yes: State the name of the company, face amount of the policy, cash surrender value, if any, and the beneficiaries.
13. Do you have any winning lottery tickets?
14. Do you anticipate that you might realize any property, cash or otherwise, as a result of a divorce or separation proceeding?
15. Have you been engaged in any business during the last six years?
If yes: Where and when? What happened to the assets of the business?
Thursday, March 4, 2010
Can I keep my car if I file for bankruptcy? By Brooklyn Bankruptcty Lawyer
My name is George M. Gilmer, Esq. I am a Brooklyn Bankruptcy Lawyer. People ask if they can keep their car if they file for bankruptcy. Then answer to this question is that it depends upon whether your car is exempt.
To determine whether your car is exempt you will need to figure out the current market value of your vehicle and minus whatever you owe the bank. For example if your car is worth $32,000 and you owe the bank $30,000 on the car, your car is actually worth $2000. New York allows you to keep your car if it is worth less than $2400, or to put it another way, you are allowed to exempt up to $2400 of value of a car in a Chapter 7 Bankruptcy case. If you have any questions about this post, or any other questions about bankruptcy feel free to reply or go to my website, http://www.gilmerlaw.com/Bankruptcy/Brooklyn%20Bankruptcy%20AttorneyLow%20FeesGet%20Rid%20of%20Bad%20Debt.aspx
To determine whether your car is exempt you will need to figure out the current market value of your vehicle and minus whatever you owe the bank. For example if your car is worth $32,000 and you owe the bank $30,000 on the car, your car is actually worth $2000. New York allows you to keep your car if it is worth less than $2400, or to put it another way, you are allowed to exempt up to $2400 of value of a car in a Chapter 7 Bankruptcy case. If you have any questions about this post, or any other questions about bankruptcy feel free to reply or go to my website, http://www.gilmerlaw.com/Bankruptcy/Brooklyn%20Bankruptcy%20AttorneyLow%20FeesGet%20Rid%20of%20Bad%20Debt.aspx
Friday, February 26, 2010
What does it mean to get a discharge in Bankruptcy? by Brooklyn Bankruptcy Lawyer
I am a Brooklyn Bankruptcy Attorney with offices in Brooklyn, New York City. My web page is located at Brooklyn Bankruptcy Attorney.
A bankruptcy discharge releases a debtor from personal liability for certain specified types of debts. The discharge prevents creditors of the debtors from taking any form of collection action on discharged debts including but not limited to, legal action, telephone calls or letters attempting to collect on the debt. My office performs many different types of bankruptcies, including Chapter 11, 13 and Chapter 7. Chapter 7 will very often wipe out all of your debts.
A bankruptcy discharge releases a debtor from personal liability for certain specified types of debts. The discharge prevents creditors of the debtors from taking any form of collection action on discharged debts including but not limited to, legal action, telephone calls or letters attempting to collect on the debt. My office performs many different types of bankruptcies, including Chapter 11, 13 and Chapter 7. Chapter 7 will very often wipe out all of your debts.
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