Legal Question in Credit and Debt Law in New York

debt collection agency

I am negotiating with a collection agency and they have put a restraining notice on my mother's accounts. I have given them proof that the funds in those accounts are not mine, even though my name is on the accounts. The name was changed after my father died and only because if anything happened to my mother the family could handle the finances. Anyway, they said they would remove the restraining notice if I provided proof the funds were not mine. I did that by faxing them a copy of the bank books that clearly state that the name change took place 4/9/90. I have $5,000 to pay on my debt. It does not pay the entire debt, but I asked that they issue an income execution for the remained of the debt. They will not proceed with my check. I need something in writing stating they are goinfg to proceed to remove the restraining order and issue the income execution. Then I will send the check. How can I get them to do this. What should I write for a statement for them to sign. I think once they get my check they may not proceed in the way I ask. They have already gone back on their word. I cannot send the check without something in writing. What should I write? How do I proceed? Is it legal to hold these books?


Asked on 2/05/08, 7:03 pm

1 Answer from Attorneys
Guy Lewit Guy Mitchell Lewit, Esq.

How to get out of your predicament...

You are negotiating with a law firm who sued you and obtained a judgment against you...that is the ONLY way they can restrain an account. First order of business is to go to the court where the judgment was entered and file a motion to have the judgment vacated (thrown out). Though you don't mention anything about the judgment (my guess is you knew nothing about the law suit they started) you have to make this motion (called an "ORder to Show Cause") which forces the plaintiff's attorneys to show cause why the judgment should NOT be thrown out...usually, all you have to state is that you knew nothing about the law suit (were never served with a summons and complaint) so the court did not have jurisdiction over you to enter a judgment in the first place...its a little technical, but unless you received notice of the commencement of a legal action against you, the court must vacate the judgment and allow you to defend yourself...you heard of the saying "everyone is entitled to their day in court"? Well, it's true. Once the judgment is vacated, so will be restraint on the account...By the way, since your name is on the account they do have the right to restrain it IF their judgment was properly entered...you can also go to court and start a proceeding whereby you have to prove the money is the account is not yours...you seem to have proof of that...BUT YOU MUST GO TO COURT AND START THE BALL ROLLING...ask the clerk for some assistance in preparing the motion papers to either vacate the judgment or prove the money in the account is not yours...GO!

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Answered on 2/05/08, 9:13 pm


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