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Question regarding lien on my bank account from a collection agency restraining notice?

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JohnLetovi

New member
New York State

I have Bank of America and was notified that there is a hold on my account because a collection agency, there is a case in the district court of my state that defaulted since I was not present on the court date in 2017 however the paper work submitted by the collection agency to my bank is signed by an attorney and not a judge and I want to vacate the judgment so I can make my case in court. They state they served the paperwork to someone in my family and I was not aware of this judgement since I was out of the country and never had a chance to argue my case. The case number shows up as default judgment under district court when I called the Supreme Court of my state they state they don't have a case under my name. Do I have any recourse to attempt and vacate the judgment from 2017 since I was never served nor present in court to represent myself and how would I do this without hiring a lawyer.
I attempted to call the bank and they sent me the paperwork the collection agency sent them (essentially the court verdict from district court however that paper is signed by the lawyer from the collection agency and termed a restraining notice). My question is if the collection agency (law firm) can place a hold on my private bank account given that the document they sent my bank is not signed by the court and also the court did not send my bank that notice?
 


Litigator22

Active Member
New York State

I have Bank of America and was notified that there is a hold on my account because a collection agency, there is a case in the district court of my state that defaulted since I was not present on the court date in 2017 however the paper work submitted by the collection agency to my bank is signed by an attorney and not a judge and I want to vacate the judgment so I can make my case in court. They state they served the paperwork to someone in my family and I was not aware of this judgement since I was out of the country and never had a chance to argue my case. The case number shows up as default judgment under district court when I called the Supreme Court of my state they state they don't have a case under my name. Do I have any recourse to attempt and vacate the judgment from 2017 since I was never served nor present in court to represent myself and how would I do this without hiring a lawyer.
I attempted to call the bank and they sent me the paperwork the collection agency sent them (essentially the court verdict from district court however that paper is signed by the lawyer from the collection agency and termed a restraining notice). My question is if the collection agency (law firm) can place a hold on my private bank account given that the document they sent my bank is not signed by the court and also the court did not send my bank that notice?
You needn't be troubled by whomever signed the notice or writ of garnishment. Your trouble is with the entry of the default judgment which was not signed by an attorney.

Assuming that you have a meritorious defense to the claim giving rise to the judgment (noting that you have mentioned none) the following Section of the New York Civil Practice Law and Rules (CPLR) may be helpful. Not sure but maybe.

"§ 317. Defense by person to whom summons not personally delivered.

A person served with a summons other than by personal delivery to him or to his agent for service designated under rule 318, within or without the state, who does not appear may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment, but in no event more than five years after such entry, upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a meritorious defense. If the defense is successful, the court may direct and enforce restitution in the same manner and subject to the same conditions as where a judgment is reversed or modified on appeal. . . . "

The reason I'm unsure is because I don't know how the NY courts interpret the wording "direct and enforce restitution". Or why in the Code § 317 is set apart from CPLR 5015 "relief from a default judgment".

Anyway, with. CPLR 5015 (a)(1) "excusable neglect'' you have one year to file to vacate all depending on the courts finding as to the date of notification of the judgment. Whereas under § 317 the moving party has up to five years to seek restitution after obtaining knowledge off the entry of the judgment.

If it were me I would cite both sections alleging that your first knowledge of the entry of the judgment came with the account being garnished.

Good luck. You'll need it.

 

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