NY State EIPA Law Violated by Bank?

[smokinjoe]

A debt collector received a default judgment because I was not properly served and placed a restraint on my bank account at Wachovia Bank. My account only had about $400 in it and now it is frozen and insufficient fund fees continue to mount. According to the newly enacted Exempt Income Protection Act the back should not have responded to the restraint notice by restraining my account because it had less than $1716 in it. However this is the case and they refuse to release my funds saying that the law is new to them, etc.

Can I sue Wachovia for this? Should I contact the Attorney General or is there some regulatory committee that I can contact to help me in my case?

Here is an explanation of the EIPA Law:

[url=http://www.empirejustice.org/New/Consumer/Consumer12.html]Empire Justice Center[/url]

[You Are Guilty]

Debtor help group: (212) 925-4929
NYS Banking Dept: (877) 226-5697
AG's office (I think they just refer you to Banking though): 800-771-7755

Good luck.

[smokinjoe]

Thanks. I'll give those a shot. I think I tried the first one already though. They only help those in NY City.

Today I filed a Request for Judicial Intervention and an Order to Show Cause/Vacate judgment on the against the Debt Collection Agency which cost $140. I also requested $2000 in damages from the debt collector as the debt is from 2001 for a ATT wireless Bill.

I spoke to the debt collector who was aware of the law and they said they sent our the restraint in December of 2008 so it does not apply. The bank placed the restraint on my account on 2/03/2009. The bank just continues to refer me back to the debt collector and say that they must comply with a judgment order.

Would it be worthwhile to file a small claim court suit against Wachovia? If so could I seek damages in excess of what was in my account.

I just don't understand how banks can so blatantly ignore the law.

[smokinjoe]

I called the NYS banking Department and because Wachovia is a National Bank they had me contact the OCC 1-800-613-6743 which I did. I will file a complaint with them to see if I can get anywhere.

[You Are Guilty]

Originally Posted by smokinjoe

I called the NYS banking Department and because Wachovia is a National Bank they had me contact the OCC 1-800-613-6743 which I did. I will file a complaint with them to see if I can get anywhere.

The collector is correct - the new law does not automatically apply to judgments filed in 08. And while I suspect a formal complaint will get you quicker results, you can file a small claims suit against the bank (although you'll really need to have the debt collector testify to have a real shot at winning). If you do go that route, might as well ask for the max ($5000/$7500 depending on where you are), but don't expect to win that much.

[smokinjoe]

Thanks again for the support. The court moved quickly in signing the Order To Show Cause (guess that's what $145 buys you) and called me today to arrange to fax the papers over from the RJI I filed. Unfortunately, the court date they set is about 2 weeks from today - February 25th. So my money still remains tied up. I will go ahead with the lawsuit against Wachovia and ask for the maximum as you have suggested. What legal term should be used to ask for damages above what was in my checking account?

[smokinjoe]

I am trying to fight this because I know I can't be the only one a Debt Collector and a bank has done this to. I can even imagine that the banks are all too happy to restrain an account so that they can tack on $100 fees like Wachovia has done in my case. The NY EIPA Law does away with this practice even restricting the bank from imposing fees even after ignoring the law and restraining a customers account. I am very luck to have money in a Paypal account or I wouldn't have even been able to pay the fee to file the RJI and Order to Show Cause - which would have left me at the mercy of the debt collector which is what their action is designed to do. Fortunately there are people that realize that leaving a debtor penniless and unable to care for their family's basic needs is the wrong way to go. However even with the law in place I really fighting an uphill battle. It really sucks to be poor and as if things aren't hard enough for people right now - you have to deal with ignorant banks like Wachovia that doesn't seem to give two s**ts.