Need Help!

[Tammara54]

What is the name of your state (only U.S. law)? New York - Evidently in 2007 I did not pay a credit card. It went to collections and then to an attorney who said he sent the judgment in the mail. Don't remember getting it. Anyway, a little over a week ago my bank account was frozen. I called the bank and asked where they got the jurisdiction to freeze my account, they said they received a court order which they sent me a copy of. To make a long story short, I finally was able to get the funds released by giving them my checking account information and they would do a check by phone. The account was released that same day. I assumed that whatever was left in my account was mine to spend. I get a call the other day from the attorney saying that the check by phone came back. I said there was enough money in the account to cover it. She said to get back to her asap and tell her when they can redeposit. I had told her that I needed to get over to the bank next week and talk to them. She mumbled something and said they were proceeding with seizing assets, which by the way I have none. My apt. is not under my name, don't have a car and was laid off from work. They can't get anything. What I am worried about is the check. I have half the money. I called an attorney, he said to get documentation proving that you owe the money, which the attorney's office said they would send me. The attorney that I spoke to said if it does not look familiar go to district court and file a motion to set aside the judgment. My question is what they can do now that the check has bounced? I am scared.

[Antigone*of*Greece]

Originally Posted by Tammara54

What is the name of your state (only U.S. law)? New York - Evidently in 2007 I did not pay a credit card. It went to collections and then to an attorney who said he sent the judgment in the mail. Don't remember getting it. Anyway, a little over a week ago my bank account was frozen. I called the bank and asked where they got the jurisdiction to freeze my account, they said they received a court order which they sent me a copy of. To make a long story short, I finally was able to get the funds released by giving them my checking account information and they would do a check by phone. The account was released that same day. I assumed that whatever was left in my account was mine to spend. I get a call the other day from the attorney saying that the check by phone came back. I said there was enough money in the account to cover it. She said to get back to her asap and tell her when they can redeposit. I had told her that I needed to get over to the bank next week and talk to them. She mumbled something and said they were proceeding with seizing assets, which by the way I have none. My apt. is not under my name, don't have a car and was laid off from work. They can't get anything. What I am worried about is the check. I have half the money. I called an attorney, he said to get documentation proving that you owe the money, which the attorney's office said they would send me. The attorney that I spoke to said if it does not look familiar go to district court and file a motion to set aside the judgment. My question is what they can do now that the check has bounced? I am scared.

You know the debt is yours, getting the judgement set aside is highly unlikely. You really opened a can of worms by bouncing the check to the attorney. You need to make it good right away and hope that he doesn't press the issue any further.

[JETX]

Originally Posted by Tammara54

My question is what they can do now that the check has bounced? I am scared.

You have a right to be SCARED. So, they have a valid judgment against you... and now you have written them a BAD check.... which is a CRIME.
You have just jumped into a bigger pile of crap.

New York bad check law:
Civil Penalty: 'Face value of check, plus two times amount of check up to $750'.
Criminal: 'Up to three months in jail, or up to $500, or up to double the amount of the drawer's gain from the commission of the offense'.

And you can't even offer a "I didn't know" defense!!
New York Penal Code:
§ 190.10 Issuing a bad check; presumptions.
When the drawer of a check has insufficient funds with the drawee to cover it at the time of utterance, the subscribing drawer or representative drawer, as the case may be, is presumed to know of such insufficiency.

Dishonor of a check by the drawee and insufficiency of the drawer's funds at the time of presentation may properly be proved by introduction in evidence of a notice of protest of the check, or of a certificate under oath of an authorized representative of the drawee declaring the dishonor and insufficiency, and such proof shall constitute presumptive evidence of such dishonor and insufficiency.

[latigo]

Don’t be frightened about this. You are not going to get into any trouble.

Because your check was not presented to the payee (credit card company) in exchange for present consideration (such as in payment of goods or services received or performed in reliance on your paying by check) you have not committed check fraud or any criminal act.

The fact the check failed to clear your account simply leaves the judgement creditor in the same position it was in was before the check was issued. That is, holding an unsatisfied judgment.
__________________________

(To help explain that, let’s say you sent in a check for a monthly car payment that bounced. When the NSF check was returned to the loan company it would simply debit back to your account the amount it had credit on the basis of the check.

However, if you wrote a NSF check to purchase the car and took possession of the car, that would be check fraud.)
_________________________

Moreover, here there was no intention on your part to issue a worthless check, or knowledge on your part that the check would not clear. You did so in good faith. An honest mistake, if you will. And they don’t put people behind bars under those circumstances.

HOWEVER, I do seriously question the soundness of the advice from the attorney who suggested that you file a motion to set aside the judgement.

In the first place the time for doing that will undoubtedly have expired.

Secondly, in any event, in order to get the court to set aside or vacate the judgment - ina ddition to showing excusable neglect such as lack of personal service of the summons and complaint –

You would have to allege under oath that you are in possession of receipts and/or other evidence showing that you don’t owe anything to the credit card company.

Even when the motion to vacate is timely filed, the court is not going to waste time in setting aside a default judgment unless the moving party has a legitimate defense to the plaintiff’s claim.

If, as you say, your are judgment proof, then the credit card company will just have to eat its judgment. Hopefully they will choke to death.

Sax

[Antigone*of*Greece]

Originally Posted by latigo

Don’t be frightened about this. You are not going to get into any trouble.

Because your check was not presented to the payee (credit card company) in exchange for present consideration (such as in payment of goods or services received or performed in reliance on your paying by check) you have not committed check fraud or any criminal act.

The fact the check failed to clear your account simply leaves the judgement creditor in the same position it was in was before the check was issued. That is, holding an unsatisfied judgment.
__________________________

(To help explain that, let’s say you sent in a check for a monthly car payment that bounced. When the NSF check was returned to the loan company it would simply debit back to your account the amount it had credit on the basis of the check.

However, if you wrote a NSF check to purchase the car and took possession of the car, that would be check fraud.)
_________________________

Moreover, here there was no intention on your part to issue a worthless check, or knowledge on your part that the check would not clear. You did so in good faith. An honest mistake, if you will. And they don’t put people behind bars under those circumstances.

HOWEVER, I do seriously question the soundness of the advice from the attorney who suggested that you file a motion to set aside the judgement.

In the first place the time for doing that will undoubtedly have expired.

Secondly, in any event, in order to get the court to set aside or vacate the judgment - ina ddition to showing excusable neglect such as lack of personal service of the summons and complaint –

You would have to allege under oath that you are in possession of receipts and/or other evidence showing that you don’t owe anything to the credit card company.

Even when the motion to vacate is timely filed, the court is not going to waste time in setting aside a default judgment unless the moving party has a legitimate defense to the plaintiff’s claim.

If, as you say, your are judgment proof, then the credit card company will just have to eat its judgment. Hopefully they will choke to death.

Sax

Please back up your statment. I can smell the crap all the over here on the west coast.

[JETX]

Originally Posted by latigo

Don’t be frightened about this. You are not going to get into any trouble.

Ignore this idiot.... his post is 110% crap.

[You Are Guilty]

Originally Posted by JETX

Ignore this idiot.... his post is 110% crap.

About 125%, by my count.