Legal Question in Credit and Debt Law in New York

Re: can I recoup fees incurring on frozen bank account ?

In NY a summons and complaint can be validly served by so called "nail and mail" service. This is available if defendant can't be served by another method (i.e., personal service or substitute service on someone else who answer the door) after "due diligence." So this is usually interpreted to mean that the process server needs to make at least a few attempts at service at different times on different days. However, as you can see by reviewing prior postings on the Law Guru website, or visiting the Order to Show Cause calendar in NY Civil Court in any borough, there are many, many people who only learn they have been sued once their bank accounts have been frozen. You can go to the court and pull the case file and review the affidavit of service filed by the process server. Maybe they used an old address that is no longer good (that seems to be, unfortunately, pretty common), or perhaps even an address that is wrong.

There is a procedure to set aside a default judgment. If you can afford to hire a lawyer you should do so ASAP. He or she will bring on an order to show cause to vacate the default judgment. If you can't afford to hire an attorney you can try to do it yourself. Depending where you live the Clerk's Office may or may not have forms and information is can provide you.

The major collections law firms do not seem to have their own staff do service of process of summons and complaints. Service is typically done by licensed process servers that are independent contractors. Whether or not you have valid claims against the law firm or process server depends on the facts in your situation. You can review the affidavit of service on file with the court to see what it says.

Anyone who has a complaint against a process server can also complain to the applicable licensing authority for process servers.

In addition, if a debtor is sued by a creditor through a collection law firm on an invalid claim that debtor may have claims under the Fair Debt Collections Practice Act (FDCPA) that he/she could pursue.

The foregoing is not intended as legal advice for your situation and is general information of interest to readers of the Law Guru website. You should consult an attorney regarding your rights and remedies.

Among other things, my firm represents clients in setting aside money judgments of $10,000 or more. It usually doesn't make sense on a cost versus benefit basis for us to get involved in judgments involving less than that. We also represent clients pursuing FDCPA violations in federal court.

You can check out the Frequently Asked Questions (FAQs) about collections and debtor-creditor matters on our website at www.starrandstar.faqs.htm for further information.

Best regards,

Stephen Starr

STARR & STARR, PLLC

tel 8888678165