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Law Pro
Law Pro, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 24870
Experience:  20 years experience in consumer advocacy, debt collection violations, contracts, construction
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i won a judgment in my favour. the debtor failed to pay so

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i won a judgment in my favour. the debtor failed to pay so I went to the marshal. I was told that they had to send requisition for execution to court and then wait for it. It has been over 5 weeks now, and now I am told that the court might have lost it and I need to submit another affidavit. Is something fishy here?

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So you are requesting execution on the defendant's assets - correct?
Customer: replied 4 years ago.

i was just trying to get paid, and a guy in the marshal's office - who turned out not even to be the marshal but some Brazilian on a green card - told me that they have to file paperwork with the court requesting permission for execution. he told me it will take max 4 weeks.

i didnt hear back so i called them exactly 4 weeks later. the guy told me they would go to court and call me from there. that was last week. I called now myself and some woman tknew exactly who iw as before i even said my name, and she told me that they had called the court and there might be an internal error there and I might need to submit another affidavit.

Does any of this make sense?

You need to get a writ of execution from the court.

A judgment creditor obtains either a writ of execution or a certified copy of the judgment from the court clerk, then deliver it to the sheriff. However, there is generally a 30 day waiting period between the entry of the judgment and the issuance of the writ so that the debtor has a chance to pay the debt.

You need a writ of execution to garnish their wages or bank account or other assets.

But something is amiss there - they should have given you that in about 30 days.

So, you really have no choice but submit another affidavit if they can't find the one already submitted.

But this is a rare occurrence - very rare in my experience.

Law Pro and 2 other Consumer Protection Law Specialists are ready to help you
Customer: replied 4 years ago.

I did have a copy of the judgment and all paperwork to submit to the marshal (not sherif) and i did wait for 30 days since the moment i notified the defendant, but the guy in the marshal' office told me that they have to send a requisition for execution. So that "requisition for execution" and 4 week wait for that makes no sense?

Correct - they are taking longer than necessary. But it's odd that they can't find the documentation.

Levy and Sale is a manner of collecting a money judgment which gives the judgment debtor the option of paying the city marshal or having some of his or her personal property levied upon and sold at auction.

Before a marshal may make a levy, he or she must obtain a property execution from the clerk of the court where the judgment was docketed or from the judgment creditor's attorney. A property execution is a mandate to the marshal to satisfy a money judgment out of the personal property of the judgment debtor and any debts due to the debtor. An execution may be issued only by the judgment creditor's attorney or by the clerk of the court in the county where the judgment was first docketed. A city marshal who is also an attorney may not serve as an attorney for a judgment creditor and therefore may not issue an execution. The Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York has opined that a marshal’s issuing an execution as an attorney and then enforcing it as a marshal would constitute an ethical violation, since “[a] marshal is an officer of the Court, and an obligation to act impartially is implicit in the office.”

Marshals are enforcement officers of the New York City Civil Court, and as such have the power to levy upon property pursuant to executions issued out of the Civil Court. In addition, current legislation has extended the power of marshals to enforce money judgments rendered by any Family Court or entered in any Supreme Court or docketed with the clerk of any county.Marshals may levy only against personal property of debtors and not against real property.Moreover, a marshal's jurisdiction and authority to serve executions against personal property, as well as all other mandates and processes, extends through and is limited to the geographical boundaries of the City of New York.

A properly issued execution must specify the date on which the judgment or order

was entered, the court in which it was entered, the amount of the judgment or order and the amount due thereon and the names of the parties in whose favor and against whom the judgment or order was entered. The execution shall also state that, pursuant to CPLR § 5205(l), $2,625 of a bank account containing direct deposit or electronic payments reasonably identifiable as statutorily exempt payments is exempt from execution. In addition, the execution shall state that, pursuant to CPLR § 5222(i), the execution shall not apply to an amount equal to or less than ninety percent of the greater of two hundred forty times the federal minimum wage or two hundred forty times the state minimum wage, except for a portion of the amount that the court determines to be unnecessary for the reasonable requirements of the debtor.

Once a valid execution has been issued to a marshal, a marshal may choose to mail a letter to the judgment debtor informing the debtor of the issuance of an execution against his or her property and warning the debtor that, if he or she does not remit the monies due, certain of the debtor's assets are subject to levy and sale. This letter, previously referred to as a "notice of execution," may prevent the need for service of an execution and subsequent sale because the judgment debtor may be persuaded by the letter to remit the amount due, or it may lead to a payment plan or settlement. However, sending such a letter through the mail to the judgment debtor does not constitute a valid levy, and thus a marshal may not specify a sale date in the letter, nor may the letter purport to levy upon property whether or not described on the execution. The Civil Practice Law and Rules (CPLR) does not provide for a fixed fee for mailing or delivering such a letter, and therefore marshals shall not charge such a fee for this service.