The information subpoena is cost-effective. However, the judgment creditor must certify that he, she, or it has a reasonable belief that the person receiving the subpoena has in his or her possession information about the judgment creditor that will assist the judgment debtor in collecting the judgment.
Specifically, the judgment debtor can seek an order to show cause why the court should not hold the judgment debtor or witness in contempt of court. The restraining notice is simple and effective. Because the restraining notice renders the judgment debtor unable to access his liquid funds, the restraining notice often obtains a prompt response and action from the judgment debtor. A restraining notice can be served either in the manner in which a summons is served, or by first class mail, return receipt requested.
One means is through the courts. Specifically, where a judgment creditor can show that the judgment debtor possesses or has custody of money or other personal property in which he has an interest, the judgment creditor can move to have the judgment debtor pay the money or deliver the personal property to satisfy a judgment.
An income execution is only available, however, when the judgment debtor makes more than 30 times the federal minimum wage or more than 30 times the New York State minimum wage , whichever is greater. Rich at For a list of enforcement officers visit the Resources page. Tell the enforcement officer that you are the Judgment Creditor the Claimant in the trial who has won money, or the Defendant who successfully countersued and won money , and that you would like the officer to request an execution from the Court.
An execution is a court order that allows the enforcement officer to take money or property from the Judgment Debtor in order to have your Judgment paid. Before the enforcement officer asks the court for an execution, the enforcement officer must know what assets the Judgment Debtor has and where they can be found.
You must provide this information to the enforcement officer. Also be aware that you will have to pay certain fees for the enforcement officer's services. Visit this webpage for the Order of Execution form and instructions.
You can use an information subpoena to find a judgment debtor's assets. You can use the pre-printed questions on the subpoena or write your own questions. The Small Claims Court Clerk will provide you with an information subpoena for a small fee, you can purchase the necessary forms from a legal stationery store, or copy the forms from a law form book found in a Public Law Library.
The information subpoena must be signed by the Small Claims Court Clerk. After the form is signed, make copies for yourself and send the subpoena, two copies of the written questions and a self-addressed envelope with the correct postage attached by regular mail or certified mail, return receipt requested to the Judgment Debtor and anyone else you think may know about the judgment debtor's assets, such as: an employer or any banks where you know the Judgment Debtor keeps an account.
If you have a canceled check from the Defendant, the back of that check should indicate the name and address of the bank where the Judgment Debtor keeps an account. Use this defense when the plaintiff is a debt buyer, not the company that you charged money to. If the plaintiff is not licensed, that is a defense to this case.
You can find out on-line at the Department of Consumer Affairs if the plaintiff is licensed. There is no debt collection license number in the complaint. Most debt buyers must be licensed by the New York City Department of Consumer Affairs and must list the license number on the complaint. Use this defense if the plaintiff did not list a license number. The court may dismiss the case or may let the plaintiff change amend the complaint to list the license number.
Statute of limitations. As time goes by, people and companies lose old records. So, there is a time limit for starting cases.
This is called the "statute of limitations. In other words, if your last payment was in December , you can be sued for the money until January However, if the company you originally owed money to is based outside of New York State the statute of limitations may be less than 6 years.
The statute of limitations on a store credit card like a Macys card is 4 years. If you made a payment at any time after you first stopped paying, the plaintiff's time to sue you starts to run again. If the court finds that the statute of limitations has passed, you do not owe the money.
The debt was discharged in bankruptcy. Use this defense if you declared bankruptcy and the money that you are being sued for now was discharged as part of the bankruptcy case. If the debt was discharged in bankruptcy you do not owe the money. The collateral property was not sold at a commercially reasonable price. Sometimes you have to give something you own to get a loan. This is called collateral. Use this defense if you think your collateral was sold for less money than it was worth.
Unjust enrichment. Use this defense when the money in the complaint is much higher than what you think you owe. But remember interest can make the money you owe higher than the original money that you borrowed.
Violation of the duty of good faith and fair dealing. You can use this defense when you think that you have tried to take care of this debt in a fair way, but the other side has not been fair or dealt honestly with you. Unconscionability the contract is unfair. Use this defense when the agreement was not fair and is very, very one-sided. Laches sounds like matches. Use this defense when the creditor waited too long on purpose to bring you to court or to sell your debt to the plaintiff. This case surprised you and the delay is very bad and makes it hard for you to defend the case.
The amount of delay depends on the facts of each case. If the creditor has a good reason for the delay this defense will not win. Defendant is in the military.
If you are in any of the military services Army, Navy, etc. You can ask the court to stop the case for 90 days. If you are still in active duty after 90 days, you can ask for another delay of the case. Other Defense.
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