Practical Skills – Judgment Enforcement: A Case Study – Sanchez v. Smith

AGENDA

9:00 a.m. – 9:10 a.m. (10 minutes)

NYSBA Introductory Remarks

9:10 a.m. – 10:50 a.m. (100 minutes) – [2.0 MCLE Credit – Skills]

I. Setting the Table – What is a Judgment and What is Collections?

a. Judgments – CPLR Article 50

i. Different types

ii. Statute of Limitations – CPLR §211

iii. Which assets can I get to? Which ones are off-limits?

1. Exempt personal property – CPLR §5205

2. Exempt real property – CPLR §5206

3. Intersection of NYS law with federal bankruptcy law

b. What is Collections?

i. Collectability

ii. Typical judgment debtor

iii. Achieving settlement – Difficulties and challenges

c. Client Relationship is Paramount

i. Communication

ii. Expectations

iii. Information about judgment debtor

II. Initial Steps to Take

a. Notice of Entry – CPLR §5513(a)

i. Starts time to appeal

ii. Not necessary if default judgment; do it anyway

iii. Debtor’s perspective

1. Just found out about case

2. Improper service of process – CPLR R. 5015 and CPLR §317

b. Docketing Judgment in Other Jurisdictions – CPLR §5203(a)

i. Lien priority

ii. Transcripts of judgment

iii. Action on judgment – CPLR §3213

iv. Docketing a judgment from another state – CPLR Article 54

v. Domestication of foreign judgment in the U.S. – CPLR Article 53

c. Sheriff’s Execution – CPLR §5230 and §5232

i. Lien priority

ii. Using the right forms

iii. Helping the sheriff help you

iv. New York City marshals

v. Debtor’s perspective

d. Restraining Notices – CPLR §5222

i. Mostly used for banks – Can be used on others

ii. Exemption notice

iii. Using the right forms

iv. Which banks? – Ask your client

v. I found money! Now what? Sheriff should levy – how?

vi. Joint account with non-debtor – Banking Law §675

vii. Debtor’s perspective

1. Exemptions are important

2. Strict statutory compliance

10:50 a.m. – 11:00 a.m. – (10 minutes) Break

11:00 a.m. – 11:50 a.m. – (50 minutes) – [1.0 MCLE Credit – Skills]

…continuing…

e. Income Execution (Wage Garnishment) – CPLR §5231

i. Early option

ii. Two-step process

iii. Debtor’s perspective

f. Subpoena Duces Tecum – CPLR R. 5224

i. Very powerful tool

ii. Who to serve first?

iii. What documents?

iv. What questions to ask?

v. Addressing non-compliance

1. Civil contempt – Judiciary Law §§756-777

2. Arrest warrants

3. Difficulties with the court

vi. Defending Against the Subpoena

1. Limiting documents

2. Limiting inquiry

3. Protective order - CPLR §§5240 and 3103

11:50 a.m. – 12:20 p.m. (30 minutes)

Lunch

12:20 p.m. – 2:00 p.m. (100 minutes) - [2.0 MCLE Credit – Skills]

g. Real Estate – CPLR §5235

i. Sale procedures – CPLR §5236

ii. Extending lien of judgment – CPLR §5014

iii. Joint ownership by non-debtor

h. Payment of Debts Owed to Judgment Debtor – CPLR §5227

i. Delivery of Property Owned by Judgment Debtor – CPLR §5225

III. Advanced and Problem Areas

a. Bankruptcy Complications – 11 USC §101 et seq.

i. Chapter 7

ii. Chapter 11

iii. Chapter 13

iv. Debtor’s perspective

2:00 p.m. – 2:10 p.m. (10 minutes)

Break

2:10 p.m. – 2:35 p.m. (25 minutes) – [.5 MCLE Credit Skills]

…continuing…

b. Voidable Transfer Complications – Debtor and Creditor Law §270 et seq.

i. Commencing Separate Litigation

ii. Filing Notice of Pendency – CPLR Article 65

iii. Old law and new law run parallel

c. Piercing the Corporate Veil

i. Emerging area

ii. Difficult burden

iii. Must do your homework first 2:35 p.m. – 3:00 p.m. (25 minutes) – [.5 MCLE Ethics]

IV. Ethical Considerations - Fair Debt Collection Practices Act and NYS Consumer Protection Laws

a. FDCPA – 15 USC §§1692 et seq. – Practical guidance

b. NYS Consumer Laws – Practical guidance

c. Traps to avoid

d. Protections for consumers 3:00 p.m. – 3:10 p.m. (10 minutes)

V. Any Additional Questions or Comments

VI. Adjournment