Many of our clients contact us after one of the following debt collectors has frozen their bank accounts. Here's a blog entry as to how it happened.
But what are your rights when your bank account is jointly held? Can the creditor's attorney simply take all of the money?
Under New York law, a joint bank account vests both holders with an unconditional interest to half of the funds. Because of that, most banks require a "turnover order" to fork over any money from that account. Other reasons exist to obtain a turnover order, for example when a debtor or garnishee fails to honor an execution. The process is set forth below, which summarizes New York CPLR § 5225. This blog entry is part of our series to summarize each section of New York Article 52 relating to the enforcement of money judgments.
Although this set of laws applies to money judgments in all types of case. We represent consumers against collection lawyers and debt buyers.
The Creditor Finds Assets
After a judgment for a debt has been entered, a creditor will investigate to see if it can discover money or property that the debtor owns that could be used to satisfy the debt. We've discussed this investigation process, called disclosure, in other posts on this blog. Now, let's discuss what happens when a creditor finds assets and how they go about obtaining them from a debtor or bank or whoever is holding the debtor's money.
The Turnover-Order Process under CPLR §5225
If a creditor finds money or property and thinks it can be claimed to satisfy the debt, it will probably seek a court order to have the money or property turned over. The process for this is outlined in New York CPLR §5225 and is explained below.
A creditor will make a motion to the court identifying the money or property, explaining why it thinks it is available to satisfy the debt and requesting that the court order the money or property to be turned over. Notice of the motion needs to be served on the debtor, either by certified mail or in any of the same ways that could be used to serve a summons. The court can either order the debtor, or someone else, to turn over assets:
- Debtor. If the money or property is in the debtor's possession and the court is satisfied with the creditor's motion, the court will order the debtor to turn over a sufficient amount of money or property to satisfy the debt. The court will then appoint a sheriff who will meet with the debtor and obtain the money or property.
- Someone Else. If the money or property is in the possession of someone other than the debtor, the motion must be served not only on the debtor, but on whoever it is the creditor claims has the money or property.
The motion needs to explain why the creditor believes the money or property belongs to the debtor and also must show that the creditor has a higher priority interest in the money or property than the person who is holding it. The debtor can speak up if he or she disagrees. This is called "intervening." Other parties who claim a right to the money or property can intervene as well. Once the court has heard from everyone with an interest, it will decide whether the creditor can claim any of the money or property and, if so, will designate a sheriff to receive the money or property and order that it be turned over.
Sometimes a court will award costs against a debtor or intervenor if it concludes they did not have a valid claim and unnecessarily delayed the process. However, the court can't award costs against a party who receives a motion to turn over money or property based on the fact that they didn't dispute the debtor's right to the money or property.
If you have questions about court orders for payment of money or property to a creditor, contact an attorney for advice right away. It is important to understand your rights and obligations under the law before taking any action.
For a more thorough analysis of bank restraints and exemptions, see this page.
Summary
- New York law dictates that a "turnover order" must be secured by creditors to access funds in a jointly-held bank account, as both account holders have an equal and unconditional right to half of the money.
- In instances where a debtor or garnishee fails to respect an execution, as defined by New York CPLR § 5225, a turnover order becomes necessary.
- Following a debt judgment, creditors perform a disclosure process to locate the debtor's assets that could potentially be used for debt clearance.
- When assets are found and deemed suitable for debt settlement, creditors may apply for a court order to have these assets turned over.
- To do this, creditors need to file a motion in court specifying the assets, justifying their availability for debt settlement, and petitioning the court to order its turnover. This motion must be served to the debtor.
- The court may direct the debtor or a third party who holds the debtor's assets to surrender them. Usually, a sheriff is appointed to collect the assets from the debtor.
- If the assets are held by a third party, the motion must be served to both the debtor and this third party. After hearing all parties, the court decides if the creditor has a claim over any of the assets.
- The court can impose costs on a debtor or an intervening party if they are found to be causing unnecessary delays without a valid claim.