Litigation

Seminar Announcement: “Nuts and Bolts of Collection Law”

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In early November, Richard Klass will help present a seminar entitled The Nuts and Bolts of Collection Law.  This seminar, presented by the National Business Institute, will take place at the Hyatt Place Garden City, in Garden City, New York.  Information follows.

Nuts and Bolts of Collection Law

Date: Wednesday, November 09, 2011

Time: 9:00 am-4:30 pm

Location:

Hyatt Place Garden City
5 North Avenue
Garden City, NY

Facility Phone: 516-222-6277

NBI Product ID#: 57049ER

Program Description

Ensure Your Clients Get Paid
Winning a judgment against a bad debt doesn’t necessarily mean cash in hand. Do you have a firm grasp of the procedures for legally collecting that debt? Are your recovery actions in compliance with the strict guidelines governing collection? Don’t rush in unprepared. Maximize your chances for recovery with the practical steps provided in this strategic seminar. Enroll today!

  • Avoid collection activities that violate the FDCPA and/or state laws. 
  • Learn best practices for discovering debtor assets both pre- and post-judgment. 
  • Recognize what provisional and final remedies are available to creditors to collect what is owed. 
  • Walk through the procedural steps for executing wage garnishments, judgment liens, attachments and other methods of collection. 
  • Know the creditor’s rights when collecting debt and when the debtor files for bankruptcy.
 

Who Should Attend

This basic-to-intermediate level seminar is primarily designed for attorneys and other legal professionals. Those who may also benefit from the collection techniques provided include: collection and loan officers, accounts receivable personnel, credit managers, bankers and controllers.

Course Content

  1. The Fair Debt Collection Practices Act (FDCPA) and State Collection Laws
  2. Ethical Issues in Collection
  3. How to Find Debtors and Their Assets
  4. Obtaining a Judgment: A Procedural Guide
  5. Collecting a Judgment: A Procedural Guide
  6. Creditors’ Rights When a Debtor Files Bankruptcy
Continuing Education Credits:

Continuing Legal Education
CLE 7.20 – NJ
CLE 7.00 – NY*

Continuing Professional Education for Accountants
CPE for Accountants: 7.00

Institute of Certified Bankers

ICB: 6.75*

* denotes specialty credits

Agenda

THE FAIR DEBT COLLECTION PRACTICES ACT (FDCPA) AND STATE COLLECTION LAWS

9:00 – 9:45, Richard A. Klass
Scope of the FDCPA
Understanding the Actions Permitted or Restricted by the Act
Demand Letters: Pitfalls to Avoid
Liability and Defenses
State Collection Laws and Their Application/Preemption
ETHICAL ISSUES IN COLLECTION
9:45 – 10:45, Richard A. Klass
Communication With Clients and Other Parties
Disclosure Issues
Aggressive Collection Practices
Unauthorized Practice of Law
Reporting Professional Misconduct
HOW TO FIND DEBTORS AND THEIR ASSETS
11:00 – 12:00, Michael Cardello III
Prejudgment Discovery Methods
Personal vs. Business Assets
Replevin/Self-Help Repossession Considerations
OBTAINING A JUDGMENT: A PROCEDURAL GUIDE
1:00 – 2:00, Michael Cardello III
Filing the Lawsuit
Service of Process
Affirmative Defenses and Counterclaims
Judgments (Default, Summary, etc.)
COLLECTING A JUDGMENT: A PROCEDURAL GUIDE
2:15 – 3:15, Kenneth H. Wurman
Post-Judgment Discovery
Judgment Liens
Wage and Bank Account Garnishment
Attachments
Writ of Execution/Seize and Sale by Sheriff
Charging Orders
Debtor Slow-Pay Motions
Turnover/Receivership
Exemptions by Debtors
Dealing With Fraudulent Transfers
CREDITORS’ RIGHTS WHEN A DEBTOR FILES BANKRUPTCY

3:15 – 4:30, Michael D. Brofman

Speakers

RICHARD A. KLASS is an attorney in the Brooklyn office of Your Court Street Lawyer. Mr. Klass is an arbitrator for the small claims part of the civil court of the City of New York, County of Kings. He practices in the areas of collections, bankruptcy, debtor and creditor, commercial litigation, legal malpractice, medical malpractice, personal injury, real estate condominium law, family law, divorce, child custody and private placement adoption law, wills, probate, trusts and estates. Mr. Klass has written numerous articles and has lectured frequently for the Brooklyn Bar Association and New York County Lawyers Association, as well as other professional groups and organizations. Mr. Klass is a member of The American Association for Justice, the New York State Bar Association, the New York County Lawyers Association (chair, The Mentoring Program, Group Mentoring Program) and the Brooklyn Volunteer Lawyers Project (Pro Bono Counsel). He earned his B.A. degree from Hofstra University and his J.D. degree from New York Law School.

MICHAEL D. BROFMAN is a member in the New Hyde Park law firm of Weiss & Zarett P.C., where he practices in the areas of bankruptcy law, debtor/creditor rights, non-judicial workouts and commercial litigation. He has lectured for the Nassau County and New York State bar associations on topics relating to his areas of practice, and is a frequent lecturer for National Business Institute on bankruptcy and secured creditor topics. He is a member of the Nassau County (member, Bankruptcy and Bank sections) and the New York State (member, Committee on Bankruptcy Law and General Practice Section) bar associations, the American Bankruptcy Institute and the Volunteer Lawyer’s Project Pro Bono Bankruptcy Panel. Mr. Brofman earned his B.A. degree from the State University of New York at Binghamton and his J.D. degree from Fordham University.

MICHAEL CARDELLO III is a partner in the Litigation Department of Moritt Hock & Hamroff LLP, concentrating in business and commercial litigation. Mr. Cardello represents large and small businesses, financial institutions and individuals in federal and state courts. He has a wide range of experience that includes trials and appellate work in the areas of corporate disputes, shareholder derivative actions, dissolutions, construction disputes, equipment and vehicle leasing disputes and other complex commercial and business disputes. Mr. Cardello earned his B.A. degree in marketing, his M.B.A. degree in finance and his J.D. degree from Hofstra University. While in law school, he was associate editor of the Hofstra Law Review. Mr. Cardello is the current vice-chairman of the Commercial Litigation Committee of the Nassau County Bar Association and also is a member of the Alternative Dispute Resolution and Securities Committee of the Nassau County Bar Association. He lectures on discovery, trial practice, equipment and vehicle leasing issues and e-discovery.

KENNETH H. WURMAN is a partner in the law firm of Naidich Wurman Birnbaum & Maday, LLP, where his practice areas, for more than 30 years, include collections and real estate. Mr. Wurman is a lecturer for National Business Institute on collection matters. He earned his B.S. degree from the State University of New York at Albany and his J.D. degree from New England School of Law. Mr. Wurman is a member of the Nassau County and New York State bar associations.

copyr. 2011 Richard A. Klass, Esq.

The firm’s website: www.CourtStreetLaw.com

Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York.

He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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Amendment to Bankruptcy Petition Worth Millions!

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A brother tried to help his sister, and it almost cost him millions of dollars. Based upon the brother’s good credit, his sister bought a house in Queens in his name. At some point, she was unable to keep up with the mortgage payments and the house fell into foreclosure.

On the eve of the foreclosure sale, the brother filed bankruptcy to “stay” the sale. In the mad rush to save the family home (which, unfortunately, is common these days!), the brother did not understand something very important: the personal injury lawsuit he filed years earlier, relating to a construction work-site injury in which he was severely injured, was an “asset” of his to be listed in his bankruptcy petition. Unfortunately, the Chapter 13 bankruptcy case was dismissed because the brother could not make the mortgage or bankruptcy plan payments. The house was later sold at foreclosure sale.

State Court Motion to Dismiss:

Subsequently, the defendants in the state court personal injury case asked the judge to dismiss the case based upon the failure of the plaintiff/injured person to list the pending lawsuit as a “contingent asset” in his bankruptcy petition. Substantial New York case law, going all the way up to the New York State Court of Appeals, has held that the failure to list the asset in the petition is fatal to the continuance of the personal injury case – every case on point says the injured person’s lawsuit gets dismissed without any recovery, no matter how grave the injury.

Uncharted Course to Be Taken:

Faced with this apparently insurmountable challenge, Richard A. Klass, Your Court Street Lawyer, was brought in to help save the man’s personal injury case. The strategy developed was to return to the Bankruptcy Court to seek to amend or fix the petition to reflect the existence of the personal injury claim. This was trail-blazing!

In determining that the debtor/personal injury plaintiff should be permitted to amend his bankruptcy petition to list the claim as an asset, Chief Bankruptcy Judge Craig stated: “This Court has not found any statute, rule or precedent that provides that a debtor’s right to amend expires upon dismissal of the case, or that the order dismissing the case must be vacated before schedules, statements or lists may be amended.” In re Severius Raggie, New York Law Journal 7/9/2008.

Interplay between “Closed” and “Closed”:

At first glance, the court noted that the bankruptcy case was marked “closed.” The judge was skeptical that an amendment to the petition could be made because Bankruptcy Rule 1009 provides that “a voluntary petition, list, schedule, or statement may be amended by the debtor as a matter of course at any time before the case is closed.”

However, in relying upon the decision in In re Critical Care Support Services, 236 BR 137, it was pointed out that a case can only be “closed” when the assets of the bankruptcy estate have been fully administered. The term “closed,” as used in Bankruptcy Rule 1009 and Bankruptcy Code §350, does not encompass “dismissed” cases. Thus, an Order dismissing a case accomplishes a completely different result than an Order closing it would; essentially, upon dismissal of a bankruptcy case, all of the debtor’s rights in his property revert back to him.

Separately, the court also held that, as part of accepting the debtor’s amendment, it could reject the amendment when “the facts and circumstances presented indicate that the amendment was filed in bad faith, fraudulent or prejudicial.” Citing to In re Nye, 250 BR 46. In this case, Judge Craig held that there was no evidence of bad faith, fraud or prejudice; the state court defendants’ argument that granting the amendment would “reward” the debtor was not persuasive. In the absence of any evidence that the debtor deliberately omitted the personal injury claim from his schedules to defraud his creditors, permitting the debtor to amend did not reward wrongdoing.

After Judge Craig granted the debtor’s motion to amend his bankruptcy petition, the state court defendants in the personal injury lawsuit withdrew their motion to dismiss the case. The plaintiff’s case is now winding through the New York State Supreme Court towards a trial, in which his serious injuries will be considered by a jury.

Richard A. Klass, Esq.

 

©2008 Richard A. Klass. Art credits: Selbstporträt mit fünfzig Jahren, by Giovanni Fattori, 1884; Porträt der dritten Ehefrau, by Giovanni Fattori, 1905. Newsletter marketing by The Innovation Works, Inc.

copyr. 2011 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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Notice to Admit: The Power of a Piece of Paper

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In the Civil Practice Law and Rules (CPLR) – the “Game Book” of civil practice in New York State courts, there is a little-used device called the “Notice to Admit.” While not as often utilized by attorneys as it ought to be, it can pack a powerful punch to the other side in litigation.

As most of us know, the old days of Perry Mason pulling out a trick at trial have greatly diminished due to the introduction into the legal process of a phase in the litigation known as “discovery.” During the discovery phase, each adversary is permitted to inspect and “discover” relevant documents and information pertaining to the lawsuit, through the use of various discovery techniques. Those discovery techniques may include, among other things, inspecting the books and records of a business, asking questions known as “interrogatories,” performing a physical examination, viewing photographs or videos made of the scene of an incident, and inspecting the geographic location of an area which is the subject of the litigation. Among those discovery techniques, there is the Notice to Admit.

CPLR Section 3123 provides that: “a party may serve upon any other party a written request for admission by the latter of the genuineness of any papers or documents, or the correctness or fairness of representation of any photographs, described in and served with the request, or of the truth of any matters of fact set forth in the request, as to which the party requesting the admission reasonably believes there can be no substantial dispute at the trial and which are within the knowledge of such other party or can be ascertained by him upon reasonable inquiry.” It is further provided that, if the latter party fails to respond, the effect is that the matter shall be deemed “admitted.”

In Rodriguez v. Moreno, it was alleged that, in 1994, the owner of a 2-family house in Brooklyn had to leave this country in a hurry and needed cash. He made an agreement with his tenant that, in exchange for $30,000 cash and the continued payment of the mortgage on the house, the tenant could effectively purchase the house from him. To memorialize their understanding, the owner and his tenant went to the owner’s attorney to sign documents.

The owner’s attorney drafted the documents necessary to transfer title to the house, including a Deed. The owner signed the documents, and the attorney held onto the originals. The agreement was, once the tenant paid off the last of the mortgage payments on the house, the Deed would be released to him from the attorney’s escrow. This arrangement continued for 13 years.

In 2007, the tenant discovered that the owner, who still held title to the house, was trying to sell it to someone else. The only proof of the agreement he had was a photocopy of the front side of the Deed that the owner signed 13 years earlier. Unfortunately, the owner’s attorney had been disbarred years earlier and was nowhere to be found; also gone were the original documents.

Quick Action Was Needed

Armed with only a skimpy photocopy of the first page of the Deed, which had the signature of the owner, the tenant hired Richard A. Klass, Esq., to bring an action under New York’s Real Property Actions and Proceedings Law (RPAPL) to enforce his rights to the house. Since the owner was actively trying to sell the house, and had signed a contract to sell the house to someone else, quick action to stop the sale was needed. With the filing of the Summons and Complaint, a Notice of Pendency (also known as a “lis pendens”) was filed against the house, which operates as notice to outsiders that someone is laying claim to ownership of the house.

The owner denied the agreement, since there was no proof of the agreement between himself and the tenant. He also claimed that the mortgage payments made by the tenant were intended as rent.

Proving the Copy To Be a Duplicate of the Original

The next, important step was to nail down through the discovery phase the proof of the agreement. In general, contracts relating to the sale of real estate require written proof under a legal doctrine known as the Statute of Frauds. Since here, there was no writing other than the photocopy of the Deed, the lawsuit appeared to be futile.

The admissions requested were as follows:

  1. That the attached Deed was signed by the defendant on September 1, 1994.
  2. That the attached Deed was prepared by the defendant’s attorney, or on his behalf by a member of his staff or office.
  3. That the defendant’s attorney prepared the attached Deed at the request of, or on behalf of the defendant.
  4. That the original of the attached Deed was taken into escrow by the defendant’s attorney at or about the time of execution thereof.

Despite being served with this Notice to Admit, the defendant failed to respond to it within the 20-day time frame in which to respond. By virtue of his not timely responding, the above allegations were deemed “admitted.”

Since it was now admitted that the owner signed the Deed in favor of the tenant, and the Deed was to be held in escrow by his attorney, the terms of the agreement were arguably established in a manner allowed by the Statute of Frauds. Coupled with the fact that the tenant made all of the mortgage payments for 13 years, the owner elected to settle the case instead of proceeding to trial.

Richard A. Klass, Esq.
 

©2008 Richard A. Klass. Art credits: page one, Der Schindanger in Livorno by Giovanni Fattori, 1865-1867.

copyr. 2011 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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Getting it Done: The Importance of Entering Timely Defaults

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In 2004, a guy went out for a night of drinkin’ on the town. On the way home, he stopped in to one last bar to drink. At the bar, in a very drunk condition, he hit on a woman. After leaving the bar to go home, he saw standing by a nearby building a woman who he thought was the same one as the one in the bar. When the guy saw the woman on the street, thinking it was the one he saw in the bar, he grabbed and touched her. Unfortunately, it turned out that she was not the same woman—and she pressed charges of assault.
 
Naturally, the woman claiming assault not only sought criminal charges but also brought a civil action to recover damages from the guy. She brought the law suit against him through her lawyer in 2004. The defendant failed to answer the complaint after being served; however, her lawyer did not ask the judge to enter a default against the guy until 2006 – two years later. In support of the request for the default judgment, the lawyer stated that the woman had left New York to return to her native country because she was emotionally distraught over the assault and did not return until 2006. The judge granted a default judgment for the woman’s pain and suffering for $1,000,000.
 
The relevant New York statute governing default judgments, CPLR 3215, provides that, when a defendant has failed to appear in an action, the plaintiff may seek a default judgment against him. However, the plaintiff is required to do so within one year after the default, as required by subsection (c) thereof:
 
Default not entered within one year: If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed. A motion by the defendant under this subdivision does not constitute an appearance in the action.
 
According to the above subsection, the court should have dismissed the complaint as abandoned, based upon the woman’s failure to take proceedings for the entry of default within one year. Numerous cases have held that dismissal of the complaint is required when there has been a failure to take timely proceedings for entry of default. See,Saunders v. Central Brooklyn Coordinating Council, Inc., 273 AD2d 294 (2d Dept. 2000); PM-OK Associates v. Britz, 256 AD2d 151 (1st Dept. 1998).

Plaintiff must show a justifiable excuse

The Second Department held, in Winkelman v. H&S Beer and Soda Discounts Inc., 91 AD2d 660 (1982), that, absent a justifiable excuse and a showing that the action is meritorious, the plaintiff’s failure to enter a default judgment against the defendant within one year of the latter’s default mandates dismissal of the action against defendant as abandoned. In the affirmation of the woman’s attorney, he stated:

“ That shortly after the Summons and Complaint was served, the Plaintiff, suffering from emotional stress and trauma based on the underlying assault and battery complained in this action, left the United States for her home country of Spain, as Defendant resided in the same neighborhood as Plaintiff, and Plaintiff, in fear of her safety and mental well-being, withdrew from the country. ”

In Herzbrun v. Levine, 23 AD2d 744 (1st Dept. 1965), the Court held that the plaintiff’s excuse that she was forced to move to West Germany shortly after the action was commenced was not sufficient cause to excuse the failure to comply with the provisions of CPLR 3215. In Sortino v. Fisher, 20 AD2d 25, 30 (1st Dept. 1963), the court stated that “[T[he duty of prosecuting …. (an) action rests upon the (person) who brings it, not the (party) who defends it.” In that case, the court stated that “there is an intimate relationship between the merit of an action and the fact that it has been neglected.” This is the reason why an affidavit is needed because it must be “as good as the kind of affidavit which could defeat a motion for summary judgment on the ground that there is no issue of fact.” As Justice Breitel wrote in the decision: “Given the delay, he has a double burden; to justify the delay and to lend credit to the proferred justification by establishing merit.” Further, “Even an action of great merit may be forfeited by prolonged delay. It is the right of a defendant to be free of a case which is not diligently prosecuted. For obvious reasons, it is very rare and quite perverse that an action of merit is not diligently prosecuted.”

Richard A. Klass, Your Court Street Lawyer, brought a motion, termed an “Order to Show Cause,” to vacate the default judgment and dismiss the action. The motion stated that the excuse of the plaintiff for not entering the default within one year (that the woman suffered from emotional stress) had absolutely nothing to do with the requirement that her attorney should have moved for the default within one year since he proceeded on the Verified (or sworn) Complaint of his client and did not need any further sworn affidavits from her to obtain the default judgment.

In response to the Order to Show Cause, the plaintiff capitulated and agreed to settle the ‘Million Dollar’ case for a mere $7,500 to avoid further litigation!

by Richard A. Klass, Esq.
Your Court Street Lawyer
 
©2007 Richard A. Klass. Art credits: page one, Bauer mit zusammengebrochenem Pferd by Giovanni Fattori.

copyr. 2011 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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What Is a “Traverse” Hearing and Why Is It Important

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Recently, I had the opportunity to successfully represent a client at a traverse hearing in the Civil Court. This article will illustrate the purpose and effect of such a hearing.

A ” traverse ” is a hearing conducted by a judge to determine whether the defendant was properly served with the Summons in the action. The ultimate result of such a hearing will be a determination that either the defendant was properly served and, therefore, must answer the Complaint, or that the defendant was not properly served and the action is deemed dismissed. Sometimes, this is the critical part of a case, especially where the time to commence a new action against the defendant has passed by virtue of the applicable statute of limitations.
 
In PRA III LLC v. Weisel, I represented the defendant, who claimed that the first time he learned of the existence of the case was when he received a copy of the judgment from the plaintiff’s counsel. Importantly, he claimed that he was never served with the Summons and Complaint by a ” process server, ” or someone authorized to serve such papers. [A “process server” in particular is someone who serves more than five Summonses within a year].
 
At the hearing, the process server was called to testify about his prior affidavit where he claimed that he served the Summons upon my client. The process server indicated on the affidavit he posted the Summons on the outer door of the defendant’s house, which may be permissible according to the statute. However, the defendant testified that he resided in the second floor apartment of a three-apartment house, and that the bells outside the common door are clearly marked with the occupants’ names. Service by posting the Summons on the outside door was deemed insufficient in this situation.
 
The service was also challenged in two other ways, which proved successful:
 
Firstly, process servers are required to maintain a “log book,” in which they note where and when they served process (or attempted to serve process unsuccessfully). Here, the process server’s log book did not contain any entry for the date of the alleged service of process.
 
Secondly, the defendant resided on a block in Boro Park, Brooklyn, which the process server conceded was a heavily Sabbath-observant Jewish neighborhood. By law, service of process on a Saturday upon someone whom the process server knows or should know to be Sabbath-observant is deemed defective.
 
The end result of the traverse was that the service of the Summons was not sustained as valid, and the action was dismissed. Now, the plaintiff is required to commence a new action if it wants to attempt collection of the debt (perhaps with a more diligent process server!).
 
by Richard A. Klass, Esq.
“Your Court Street Lawyer”
Copyright 2005
 
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York. He may be reached at (718) COURT-ST or RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.
 
 

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What Is a “Traverse” Hearing and Why Is It Important by Richard A. Klass, Esq. is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. For permissions beyond the scope of this license, please contact Mr. Klass (email: RichKlass@CourtStreetLaw.com). Insert the words “reprint permission request” in the subject line of the email.
 

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About the Author:
Richard A. Klass, Esq. maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York. He may be reached by phone at (718) COURT-ST [(718) 268-7878)] or RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.
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copyr. 2011 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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