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Richard A. Klass
By Richard Klass, Esq.
On January 1, 2009, New York State enacted new measures relating to the restraint of debtors’ bank accounts, through the enactment of the Exempt Income Protection Act (“Act”).
The Act materially changes the process of restraints on debtors’ bank accounts, and the steps that each party to the process must take. The Act imposes new requirements on (a) the bank, to identify and analyze the source(s) of income and deposits into an account; (b) the judgment creditor’s attorney, to issue new exemption notices and forms, and appropriately address claimed exemptions by the debtor; and (c) the debtor, to timely raise any exemption claims upon restraint of an account. Since this process is “brand new” to New York law, the manners in which all of these parties, as well as the court system address the process will evolve from practice and procedure.
To begin the analysis, it is important to first see from where it came. In the past, all attorneys for judgment creditors had to resolve the issue of whether to release a debtor’s restrained bank account upon the debtor’s claim that the moneys contained in the account were exempt funds. Normally, the attorney would ask the debtor to provide proof (through account statements or other documents) regarding the claim, at which point either the attorney would consent to release the account or the debtor would bring an Order to Show Cause to claim the exemption. Part of the considerations of the Legislature in enacting the Act was that the threat of the continued restraint of the bank account, especially where the debtor needed immediate access to the moneys, without fair consideration of any exemptions, created a perceived presumption of uneven bargaining positions between the parties.
Another component of the process that played a part in the passing of the Act was the increased ease of the banking institutions to create or identify accounts containing only exempt moneys. The increased ease is due to the “direct deposit” and “electronic payment” features now common – the banking institutions are now better able to quickly determine the source of funds in an account, for the most part.
The Act amended or added the following sections of Article 52 of the Civil Practice Law and Rules: (a) CPLR 5205 – Exemptions; (b) CPLR 5222 – Effect of Restraint; (c) CPLR 5222-a – Exemption Notice and Claim Process; (d) CPLR 5230 – Property Executions; (e) CPLR 5231 – Income Executions; and CPLR 5232.
The key is that the direct deposits or electronic payments must be “readily identifiable” by the banking institution as statutorily exempt payments. This new language will allow the bank to analyze, prior to restraint, whether the debtor’s account should be restrained from the onset – before the debtor needs to provide any other documentation to establish an exemption. Obviously, as more payment systems, businesses, and governmental agencies move towards direct deposit and electronic payments, the identification process will become even easier; the bank’s internal procedures ought to identify the source of deposits to determine whether any moneys came into the account during the 45-day period which would trigger the $2,500 exemption.
CPLR 5222: The section which authorizes the “restraint” of debtor accounts was amended to (a) revise the notice sent to debtors, either before or with the restraining notice; (b) add an additional presumed exemption for wages; and (c) save debtor’s bank fees for unlawful restraints.
Concerning the revisions to the notice sent to debtors, a specific form must be utilized, which includes additional exemptions not found in the prior notice and more notice concerning the rights of the debtor to obtain free legal counsel or proceed in court without counsel.
As to restraints placed upon a debtor’s account, CPLR 5222 now contains two presumed exemptions, one being that mentioned in CPLR 5205 above, regarding “statutorily exempt payments.” The other new exemption is the presumption that the first $1,740 in an account (which figure adjusts based upon the greater of the state or federal minimum hourly wage) is deemed exempt as wages, unless a court determines that those funds are unnecessary for the reasonable requirements of the debtor and his dependents. This subdivision very effectively takes out of play the restraint of most debtor bank accounts – unfortunately, most debtors live “hand-to-mouth” and bank accounts tend not to contain more than $1,740.
The issue as to bank charges was resolved. Many times, debtors would pay bank fees of $100-$200 for the restraint of their accounts, whether or not the restraint was proper. Now, if the restraint is unlawful, the bank cannot charge any fees to the debtor. This seemingly applies to accounts belonging to debtors who file for bankruptcy prior to restraint, but this issue is left for future determination.
CPLR 5222-a: Perhaps the section that will cause the most stress and confusion to all involved parties, this section sets up the method for notifying debtors of exemptions and the process for lifting the restraints on accounts pursuant to those exemptions. These rules apply to a Sheriff or Support Collection Unit as well as judgment creditors.
First, the judgment creditor’s attorney must now serve (1) two copies of the restraining notice; (2) one copy of the new “exemption notice;” and (3) two copies of the new “exemption claim form.” The specifics of the notice and form are written into the statute.
Second, within two days after the bank receives the above process and notices, it must serve copies upon the debtor by mail.
Third, within twenty days of the postmarked date of the bank’s mail, the debtor must complete the “exemption claim form” (marking the appropriate claimed exemption) and serve one copy on the judgment creditor’s attorney and one copy on the bank.
Fourth, the bank must serve a notice to the judgment creditor’s attorney that it will release all funds in the debtor’s account within eight days unless the judgment creditor interposes an objection to the exemption. Separately, the judgment creditor, upon receipt of the exemption claim form, must instruct the bank to release the account within seven days unless it is objecting to the exemption.
If the account contains commingled funds (exempt and non-exempt moneys), the accounting principle of “lowest intermediate balance” shall be applied. This will require an analysis as to whether withdrawals from the account, which will be considered to be made from non-exempt funds first, reduce the portion of non-exempt funds to a level that necessitates the release of all or a portion of the funds. Most creditors’ counsel agree that, in all likelihood, this accounting principle will result in the release of the restrained account.
Scary stuff!: If the court determines that the creditor’s objection was asserted in bad faith, the debtor will be awarded costs, reasonable attorney’s fees, actual damages, and an amount not to exceed $1,000.
CPLR 5230/5231/5232: These sections relate to both Property and Income Executions issued by the judgment creditor’s counsel to the Sheriff (or Marshal within New York City). The amendments to these sections mirror the changes mentioned above, and apply to levies made by the Sheriff upon debtor accounts.
The following forms contain the changes pursuant to the Act:
1. CPLR 5222 Notice to Debtor
Note: Where the debt owed is either to New York State and its agencies or municipal corporations OR if owed for child support, spousal support, maintenance or alimony, then the above rules concerning restraints are not applicable and the restraining notice should state at the top in 16-point bold type: “The judgment creditor is the State of New York, or any of its agencies or municipal corporations AND/OR the debt enforced is for child support, spousal support, maintenance or alimony.”
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 29th Floor, Brooklyn Heights, New York. He may be reached at (718) COURT-ST or RichKlass@courtstreetlaw.com for any questions.
NOTICE TO JUDGMENT DEBTOR
Money or property belonging to you may have been taken or held in order to satisfy a judgment which has been entered against you. Read this carefully.
YOU MAY BE ABLE TO GET YOUR MONEY BACK
State and federal laws prevent certain money or property from being taken to satisfy judgments. Such money or property is said to be "exempt". The following is a partial list of money which may be exempt:
If you think that any of your money that has been taken or held is exempt, you must act promptly because the money may be applied to the judgment. If you claim that any of your money that has been taken or held is exempt, you may contact the person sending this notice.
As required by New York Law
Your bank account is restrained or “frozen.”
The attached Restraining Notice or Notice of Levy by Execution has been issued against your bank account. You are receiving this notice because a creditor has obtained a money judgment against you, and one or more of your bank accounts has been restrained to pay the judgment. A money judgment is a court’s decision that you owe money to a creditor. You should be aware that FUTURE DEPOSITS into your account(s) might also be restrained if you do not respond to this notice.
You may be able to “vacate” (remove) the judgment. If the judgment is vacated, your bank account will be released. Consult an attorney (including free legal services) or visit the Court Clerk for more information about how to do this.
Under state and federal law, certain types of funds cannot be taken from your bank account to pay a judgment. Such money is said to be “exempt.”
DOES YOUR BANK ACCOUNT CONTAIN ANY OF THE FOLLOWING TYPES OF FUNDS?
If YES, you can claim that your money is exempt and cannot be taken. To make the claim, you must (a) complete the EXEMPTION CLAIM FORM attached; (b) deliver or mail the form to the bank with the restrained or “frozen” account; and (c) deliver or mail the form to the creditor or its attorney at the address listed on the form.
You must send the forms within 20 DAYS of the postmarked date on the envelope holding this notice.
You may be able to get your account released faster if you send to the creditor or its attorney written proof that your money is exempt. Proof can include an award letter from the government, an annual statement from your pension, pay stubs, copies of checks, bank records showing the last two months of account activity, or other papers showing that the money in your bank account is exempt. If you send the creditor’s attorney proof that the money in your account is exempt, the attorney must release that money within seven days. You do not need an attorney to make an exemption using the form.
Directions: To claim that some or all of the funds in your account are exempt, complete both copies of this form, and make one copy for yourself. Mail or deliver one form to Address A and one form to Address B within twenty days of the date on the envelope holding this notice.
** If you have any documents, such as an award letter, an annual statement from your pension, paystubs, copies of checks or bank records showing the last two months of account activity, include copies of the documents with this form. Your account may be released more quickly.
I request that any correspondence to me regarding my claim be sent to the following address:
I certify under penalty of perjury that the statement above is true to the best of my knowledge and belief.
TO THE SHERIFF (or MARSHAL) OF ANY COUNTY, GREETING:
WHEREAS, in an action in the Civil Court of the City of New York, County of Kings, between ABC Company, as Plaintiff, and John Doe, as Defendant, a judgment was entered on February 3, 2009, in favor of Plaintiff and against John Doe, Defendant, 123 Main Street, Brooklyn, NY 11201, in the amount of $1,000, of which $1,000, together with interest from February 3, 2009, remains due and unpaid;
WHEREAS, a transcript of judgment was filed with the Clerk of the County of Kings on February 3, 2009;
NOW, THEREFORE WE COMMAND YOU to satisfy the said judgment from the real and personal property of the above-named judgment debtor, and the debts due to him; and that only the property in which said judgment debtor, who is not deceased, has an interest or the debts owed to him shall be levied upon or sold hereunder; and to return this Execution to the Clerk of the above-captioned court within 60 days after issuance unless service of this Execution is made within that time or within extensions of that time made in writing by the attorney for the judgment creditor.
PURSUANT to CPLR 5205(l), $2,625 of an account containing direct deposit or electronic payments reasonably identifiable as statutorily exempt payments, as defined in CPLR 5205(l)(2), is exempt from execution and the garnishee cannot levy upon or restrain $2,625 in such an account.
PURSUANT to CPLR 5222(i), an execution shall not apply to an amount equal to or less than 90% of the greater of 240 times the federal minimum hourly wage prescribed in the Fair Labor Standards Act of 1938 or 240 times the state minimum hourly wage prescribed in Labor Law 652 as in effect at the time the earnings are payable, except such part as a court determines to be unnecessary for the reasonable requirements of the judgment debtor and his or her dependents.
WHEREAS, it appears that you are indebted to the judgment debtor, or in possession or custody of property not capable of delivery in which the judgment debtor has an interest, including the following specified debt and/or property:
NOW THEREFORE, you are required by CPLR Section 5232(a) forthwith to transfer to the Sheriff all personal property not capable of delivery in which the judgment debtor is known or believed to have an interest now in or hereafter coming into your possession or custody including any property specified in this notice; and to pay to the Sheriff, upon maturity, all debts now due or hereafter coming due from you to the judgment debtor; and to execute any documents necessary to effect such transfer or payment; and
TAKE NOTICE, that until such transfer or payment is made, or until the expiration of 90 days after the service of this Execution upon you, or such further time as is provided by any Order of the Court served upon you, whichever event occurs first, you are forbidden to make or suffer any sale, assignment, or transfer of, or interference with, any such property, or pay over or otherwise dispose of any such debt, to any person other than the Sheriff, except upon direction of the Sheriff or pursuant to an Order of the Court; and
TAKE FURTHER NOTICE, that at the expiration of 90 days after a levy is made by service of this Execution, or of such further time as the Court, upon motion of the judgment creditor has provided, this levy shall be void except as to property or debts which have been transferred or paid to the Sheriff, or as to which a proceeding under CPLR Sections 5225 or 5227 has been brought.
Judgment Debtor (name and last known address):
A judgment was entered in the within court in favor of Judgment Creditor and the particulars are as follows:
The judgment was recovered against John Doe, Defendant, and transcripted with the Clerk of Kings County on February 3, 2009.
This Execution is issued against John Doe, whose last known address is: 123 Main Street, Brooklyn, NY 11201, and whose social security number is 123-45-6789, and who is receiving, or will receive wages of $500.00 for each weekly pay period from the Employer. "Employer" herein shall include any payor of money to Judgment Debtor. The Employer's name and address is:
XYZ Warehouse, 25 Court St., Brooklyn, NY 11201
You are directed to satisfy the judgment with interest together with your fees and expenses out of all moneys now and hereafter due and owing to Judgment Debtor from the Employer pursuant to CPLR §5231.
Directions to Judgment Debtor: You are notified and commanded immediately to start paying to the Enforcement Officer serving a copy of this Income Execution on you: installments amounting to 10% (but no more than the limits set forth in I. Limitations below) of any and all salary, wages, or other income, including any and all overtime earnings, commissions, or other irregular compensation received or hereafter to be received from your Employer and to continue paying such installments until the judgment with interest and the fees and expenses of this Income Execution are fully paid and satisfied, and if you fail to do within 20 days, this Income Execution will be served upon the Employer by the Enforcement Officer.
Directions to the Employer: You are commanded to withhold and pay over to the Enforcement Officer serving a copy of this Income Execution upon you: installments amounting to 10% (but no more than the limits set forth in I. Limitations below) of any and all salary, wages, or other income, including any and all overtime earnings, commissions, or other irregular compensation now or hereafter becoming due to Judgment Debtor until the judgment with interest and the fees and expenses of this Income Execution are fully paid and satisfied.
This Income Execution directs the withholding of up to 10% of Judgment Debtor's gross income. In certain cases, however, state or federal law does not permit the withholding of that much of Judgment Debtor's gross income. The Judgment Debtor is referred to New York Civil Practice Law and Rules, Section 5231 and United States Code, Title 15, Section 1671.
I. Limitations on the amount that can be withheld:
A. An Income Execution for installments from a judgment debtor's gross income cannot exceed 10% of the judgment debtor's gross income.
B. If a judgment debtor's weekly disposable earnings are less than the greater of 30 times the current federal minimum wage ($7.25 per hour) or $217.50, or the New York State minimum wage ($7.25 per hour) or $217.50, no deduction can be made from the judgment debtor's earnings under this Income Execution.
C. A judgment debtor's weekly disposable earnings cannot be reduced below the amount arrived at by multiplying 30 times the greater of the current federal minimum wage ($7.25 per hour) or $217.50, or the New York State minimum wage ($7.25 per hour) or $217.50 under this Income Execution.
D. If deductions are being made from a judgment debtor's earnings under any orders for alimony, support, or maintenance for family members or former spouses, and those deductions equal or exceed 25% of the judgment debtor's disposable earnings, no deduction can be made from the judgment debtor's earnings under this Income Execution.
E. If deductions are being made from a judgment debtor's earnings under any orders for alimony, support, or maintenance for family members or former spouses, and those deductions are less than 25% of the judgment debtor's disposable earnings, deductions can be made from the judgment debtor's earnings under this Income Execution. However, the amount arrived at by adding the deductions from earnings made under this Execution to the deductions made from earnings under any orders for alimony, support, or maintenance for family members or former spouses cannot exceed 25% of the judgment debtor's disposable earnings.
Note: Nothing in this notice limits the proportion or amount which may be deducted under any order for alimony, support, or maintenance for family members or former spouses.
II. Explanation of limitations:
Definitions: a) Disposable earnings - Disposable earnings are that part of an individual's earnings left after deducting those amounts that are required by law to withheld (for example: taxes, social security, and unemployment insurance, but not deductions for union dues, insurance plans, etc.); b) Gross Income - Gross Income is salary, wages, or other income, including any and all overtime earnings, commissions, and income from trusts, before any deductions are made from such income.
III. Notice: You may be able to challenge this Income Execution through procedures provided in CPLR §§5231(i) and 5240.
If you think that the amount of your income being deducted under this Income Execution exceeds the amount permitted by state or federal law, you should act promptly because the money will be applied to the judgment. If you claim that the amount of your income being deducted under this Income Execution exceeds the amount permitted by state or federal law, you should contact your employer or other person paying your income. YOU MAY CONSULT WITH AN ATTORNEY, INCLUDING LEGAL AID IF YOU QUALIFY. New York law provides two procedures through which an Income Execution can be challenged.
CPLR 5231(i) - Modification: At any time, the judgment debtor may make a motion to a court for an Order modifying an Income Execution.
CPLR 5240 - Modification or protective order: supervision of enforcement: At any time, Judgment Debtor may make a motion to a court for an Order denying, limiting, conditioning, regulating, extending, or modifying the use of any post-judgment enforcement procedure, including the use of Income Executions.
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