New York City Debt Collection Defense Attorney

Judge scrutinizes non-military affidavits

As we have noted here before, the return of our service members from Iraq, Afghanistan and other parts of the world gives rise to increasing concerns about collection abuses against members of the military.

If you or anyone you know is in the military, or is dependent upon someone in the military, be aware that there are a number of laws that give military service personnel and their dependents special protections against debt collectors.

One such law requires debt collectors who sue on an alleged debt to submit a sworn statement to the court indicating that they have done an investigation (often by searching a federal database) and have confirmed that you are not in the military.

If the debt collector investigates and finds you are in the military, they cannot get a default judgment (a judgment that enters when the defendant does not know about the complaint against him/her or for some other reason does not respond) against you, nor can the debt collector take your wages or take money from your bank account.

If the debt collector puts false information on the sworn statement to the court, it is a violation of federal and state law, and subjects them to civil and criminal penalties. Unfortunately, we see false affidavits on this topic, and others, submitted to the courts more frequently than we would wish.

So we were heartened to see a recent decision from Judge Kraus in Bronx County Civil Court in which the judge got tough when she detected a false non-military affidavit submitted by the plaintiff’s agent in an eviction proceeding.

Denying the petitioner's motion, the judge's opinion noted that "the filing of a false affidavit is a criminal act, and may also constitute contempt of court."

The judge held, “given that [petitioner's agent] essentially admits the commission of multiple criminal acts, the matter will be referred by the Court to the appropriate body for further action… Additionally, [plaintiff’s] counsel is directed to provide this Court with a list within thirty days of receipt of this decision of the Index Numbers of any proceedings where [the petitioner’s agent] submitted an affidavit of investigation [of military status] in support of a default judgment.”[1] Presumably the agent may face criminal penalties, and all previous matters in which the agent submitted affidavits will be reviewed, if not vacated outright.

We applaud this outcome, and hope to see similar scrutiny of process server affidavits.

Encore; Asta Funding; Asset Acceptance; Portfolio Recovery Associates; Palisades Collection, LLC; Capital One; LR Credit 10, 15, or 13 LLC. Been sued by these or other debt buyers or creditors? Get help from an experienced debt defense and credit damage law firm.

-Sheril Stanford

[1] The case is Davidson Avenue SIP HDFC v. Castro, 2011 NY Slip Op 30194