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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86657
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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What can they do with property? Put a lein against it? Even

Customer Question

What can they do with property? Put a lein against it? Even if Bank still owns a major part of it?
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello friend and thank you for requesting me.

Yes, they can put a lien on it. Now this does not guarantee that they will get it, but simply that it will not be able to sell the property later if your name is on it without having the lien released first, or, if someone tries to buy it, the money would go to the lien-holder.

In addition, they can:

1) Levy a bank account (exlusing benefits);
2) Possibly garnish a paycheck (up to 25% of net amount, typically); and/or
3) Attach and sell off non-exempt property.

Now this does not mean that they will use EACH and EVERY of these things to try to collect on judgment, but they may.

However, not all assets/property are prone to be collected. Assets/property exempt from judgment can be found here.

I hope this helps and clarifies.

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Customer: replied 1 year ago.


As per FRO hearing ruling, the Judge did not have any evidence from either party. So he had to go just by his own credibility assessment. Unfortunately he found me less credible than him and as a I lost. Now given this, do you think the 'Civil suit' judge will go by FRO hearing alone and give decision in his favor thinking that I have been anyway proven not credible in the other court.

Expert:  Ely replied 1 year ago.
Ska,

Thank you for your follow up.

I cannot predict what the Judge will state, I am afraid. So it would be premature for me to take a guess, I am afraid.

However, it sounds like the other side may be attempting to file a malicious prosecution suit. he elements of an action for malicious prosecution are (1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice (see Martin v City of Albany, 42 N.Y.2d 13, 16; Broughton v State of New York, 37 N.Y.2d 451, 457, cert den sub nom. Schanbarger v Kellogg, 423 US 929; 2 NY PJI 798 et seq.).

The Plaintiff would have to show all those four elements to be successful, if this is what they are attempting to do. This is not easy.

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Customer: replied 1 year ago.

But if I moved to another state then he has to come all the way to that new state to sue me right?


 

Expert:  Ely replied 1 year ago.
Ska,

Thank you for your follow up.

But if I moved to another state then he has to come all the way to that new state to sue me right?

Not necessarily. They can still sue you in NY if the underlining cause of the suit took place in New York. New York Civil Practice Law § 302 et seq. They would have to register the judgment in whatever state you are in to enforce it, however, but they can if they really want to.

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Customer: replied 1 year ago.


Can he sue me in NJ? The FRO hearing took place in NY.

Expert:  Ely replied 1 year ago.
Ska,

Where does he live - NJ or NY? Where do you live - NJ or NY?
Customer: replied 1 year ago.


I live in NY and he lives in NJ. Another reason I want to run to a different state is: he already has a FRO against me from an NJ court. He fabricated a violation of that himself and got me convicted once. I fear that he may do again so. If he is successful 2nd time there is minimum jail time of 30 days as per NJ law.


So If I move to another state and do not give any forwarding address then the summon from NJ court will be simply returned and then they cannot prosecute me right?

Expert:  Ely replied 1 year ago.
Ska,

Thank you for your clarification.

Can he sue me in NJ? The FRO hearing took place in NY.

He is more likely to pursue you in New York, if anything.

So If I move to another state and do not give any forwarding address then the summon from NJ court will be simply returned and then they cannot prosecute me right?

Understand that this cannot be a criminal matter. So if you are using "prosecute" to mean a criminal matter, this is wrong - they cannot have you criminally charged for this. They can only - maybe - pursue you via a civil suit.

However, if you move to another state, again, they can serve you by substitute service (court wall, newsletter, etc) and still continue with the suit. I am sorry. So running is not going to stop the suit (if they even file it). I am very sorry.

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Customer: replied 1 year ago.


I think I managed to confused you a bit. There are two suits I am talking about.


 


#1. A potential civil suit by him which we had been discussing so far.


 


#2. If he fabricates a violation of FRO (he has it from NJ court against me) then the NJ prosecutor/court has to send me a summon and that will not be delivered to me as I will be in a different state. Its unlikely that NJ prosecutor will go to the extent of finding me.


 


His typcial way of fabrication is he will make a phone call from an unknwon number to his residence and claim that the call came from me and I abused him. He has played this once successfully and got me convicted in NJ court.


 

Expert:  Ely replied 1 year ago.
Ska,

Ah, okay - my apologies.

#1. A potential civil suit by him which we had been discussing so far.

They can serve you by substitution.

#2. If he fabricates a violation of FRO (he has it from NJ court against me) then the NJ prosecutor/court has to send me a summon and that will not be delivered to me as I will be in a different state. Its unlikely that NJ prosecutor will go to the extent of finding me.

I doubt that this will happen, but if it does, the D.A. will ask the Court to issue a warrant against you if you cannot be found and if you are ever stopped by the police in any other state, you may be transported back to NY/NJ to stand trial, so no, this is not a good option to run, I am afraid.

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Customer: replied 1 year ago.


I never thought living in America is that difficult , especially when I am innocent that I have to run from State as well as this guy who is freak and there is no way to stop him.

Expert:  Ely replied 1 year ago.
Ska,

I can understand your frustration. At this point, you may want to retain counsel if possible to help you though this.

Do not stress out - stress will only make this worse. Little by little, step by step, you will handle this. You will see. Soon, this may be all but a distant memory you tell your friends at a dinner table.

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Customer: replied 1 year ago.


The issue is not about retaining counsel. I have spent huge amounts first fighting the 1st fabrication in NJ court. Then FRO fighting in NY court. Both Judges found me "not credible". Ok this is all happening with my wife not me per se.


 


Since the home in NY is jointly owned by me , her and bank. Then how much they can eventually collect from her? She is also planning to stop working if it comes to the extent of wage garnishment.


 


If we move to other state do we have to come for trials in NY all the way for the civil suit?

Expert:  Ely replied 1 year ago.
Ska,

Since the home in NY is jointly owned by me , her and bank. Then how much they can eventually collect from her?

They can:

1) levy a bank account;
2) put a lien on any titled property;
3) garnish up to 25% of paycheck; and/or
4) attach non-exempt assets to auction off for judgment.

Exempt assets may be found here.

If we move to other state do we have to come for trials in NY all the way for the civil suit?

Yes, I am afraid so. If you retain counsel, that may limit the amount of trips but you'd still have to make 2-3, likely.

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Customer: replied 1 year ago.


As a precautionary measure , to minimize the impact do you think if we do following , anyone can stop us ?


#1. Sell the NY property and move the balance in my account.


#2. Whatever cash she has in her account move all of it in my name.


#3. Move cars in my name.


# 4. Move remaining stuff in my name.


 


After this let them win and let them collect from her as she may not work, may not have any assetts in her name.


What do you say?


 

Expert:  Ely replied 1 year ago.
I am afraid that may not work, Ska.

Under the Fraudulent Conveyances law of New York, any asset conveyance in anticipation of a lawsuit and/or in an attempt to hide the assets may still have them seize these assets if they get judgment.

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Customer: replied 1 year ago.

what if those are moved out of country to a foreign account?

Expert:  Ely replied 1 year ago.
Ska,

If you move out of the country, then they have to know where you are to try to domesticate their judgment there, which is often costly, confusing, and time-consuming. So if you relocate, the chances of them pursuing you are slim to none. However, any real property located in NY still in Defendant's name may be attached.

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Customer: replied 1 year ago.


I knew if we move out of country these guys cant do much.


 


I was saying, if just liquidate assets here and wire to my foreign account back in india and we still continue to live here in US. The whole idea is if she having zero assets , so that they have zero interest in suing her.

Expert:  Ely replied 1 year ago.
Ska,

Perhaps, but keep in mind:

1) They may sue her on the principle, and also may hold the judgment over her and attack any assets that she receives LATER and;

2) They do not necessarily know how much money/assets she does/does not have.

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