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Elliott M. Portman

Elliott Portman’s Answers

230 total

  • Can a Warrant of Attachment be issued for money owed due to credit card debt or collection agency?

    I have read about Warrant of Attachment but in most cases it is regarding child support. But some unaccredited websites state it can also be issued by a judge to recover bad credit card debts, medical debts and any miscellaneous debts. Is this t...

    Elliott’s Answer

    In New York, it is called a Property Execution. The judgment-creditor (or attorney) delivers the execution to the Sheriff together with the Sheriff's fees.

    Any property belonging to the judgment-debtor that is not exempt from attachment under CPLR Article 52 is fair game for levy and public sale.

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  • Hi, Today I'm being sue by a lawyer for non payment of medical bills ( Anesthesia bill)

    I'm from New York and I had surgery about a year ago , conducted by a doctor within network but I'm not sure if the Anesthesiology (suing doctor) was within my insurance network . I'm assuming that my insurance partially pay for this bill because...

    Elliott’s Answer

    You should contact your insurance company about the bill. When you received the Statement of Charges from the insurance company showing the charge wasn't covered, did you dispute it within their rules? If not, you may be precluded from raising the issue now.

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  • My husband has an open court case and part of the sentence may be financial. If he doesn't have the money can I be responsible?

    I have 2 sole bank accounts. Will the prosecutors go after my money if he will have to pay a penalty? What about our joint house? Should I get divorce to secure my assets?

    Elliott’s Answer

    If you are not named as a defendant in the lawsuit, your personal assets can not be taken from you without a further Order of the Court. Jointly owned assets, like a bank account you share with your husband, are presumed owned as half his and half yours. If you can prove that you put all the money into the account, your account should not be at risk since the money is all yours to start with.

    Your house, if jointly owned as husband & wife, is probably not at risk for a number of reasons. Please don't divorce your husband without a better reason!

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  • I would like to have a ruling made against me (9/2004) in New York looked into and hopefully overturned?

    A credit card account with Hudson Valley Credit Union was used in court in 9/2004 to generate a ruling against me. I was never contacted about this matter by Hudson Valley Credit Union or by their legal representation. I found out about the cour...

    Elliott’s Answer

    If you found out about the judgment in 2009, you may be precluded from making a motion to vacate the judgment under NY law. It has been over one year since you became aware of the entry of judgment. If you chose not to do anything about it for three years, the Court may not look favorably on an application to vacate the judgment based upon excusable default or lack of notice of the suit.

    Do you have a defense to the claim? Your post doesn't indicate a reason why you don't owe money on the credit card. If you don't have a meritorious defense, the question the Judge asks her/himself is: why bother vacating the judgment if the defendant owes the money anyway?"

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  • Can I collect on a joint account from an ex?

    An ex-boyfriend of mine, who was listed as a secondary on an Ashley Furniture account I opened in 2008/9, charged $5k+ on the card in Oct/Nov 2010 without my knowledge. At the time we were still in a relationship but he was residing in TX, and I i...

    Elliott’s Answer

    You might consider suing him in New York for contribution, then sending the judgment down to Texas for enforcement. Down there the State permits generous exemptions to enforcement but it is not impossible.

    Any judgment in your favor will impact his credit score there. Even if you don't collect on the judgment, he will have a lasting memory of your relationship...

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  • How do I answer a summons where I was the cosigner?

    I received a summons from a debt collection company for a car loan that was not paid in full by the primary ownersigner. I the cosigner received the summons on July 15, 2011. the summons was filed on April 11, 2011 at the Hauppague District Court....

    Elliott’s Answer

    Make a decision whether you want to settle now or later. If you settle now, you will probably be able to negotiate a better number. If you make the creditor spend more in attorney fees to process the case, they will surely add the additional fees onto the deal.

    If you can't reach any settlement with the creditor, you should file an Answer. When you do, they will probably move for summary judgment against you based upon the Note and Guaranty. I would.

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  • Credit card company filed with district court 4/28

    ISSUE IS: I have not received a summons, but an attorney's ad that was mailed to me, which got my attention to check to see what "lawsuit" they were referring to. Long story short, I found my name listed as defendant in a Suffolk County district ...

    Elliott’s Answer

    You didn't say you didn't owe the money. Why don't you just pay it?

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  • If a small claims judgement is issued against me in new York state can payment arrangements be made?

    Amount is around 2500.00

    Elliott’s Answer

    Of course a payment arrangement can be made. You need to contact the attorney for the creditor or the creditor him/herself.

    Any arrangement you reach should be reduced to writing so that each party knows what the expect and what will happen if you don't pay as agreed.

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  • What is required for a written response to a Consumer Credit Transaction summons in New York State

    I have only social security and a VA disability pension for income

    Elliott’s Answer

    Your question doesn't state that you don't owe the money. If you do, contact the attorneys representing the creditor to make a payment arrangement.

    In the event you can demonstrate to them that your only source of income is from exempted funds, the creditor should be very reasonable on the terms of payment.

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  • What is the maximum finance charge for past due balances in the state of NY

    I would like to add to my invoice and contracts taht a finance charge will be applied to past due balances. I am hearing different things about the maximum allowable. Can you help?

    Elliott’s Answer

    The maximum rate of interest provided for in section 5-501 of the general obligations law is sixteen per centum per annum.

    FYI: NY CLS Penal § 190.42 (2011)
    Criminal usury in the first degree is over 25%/year.

    However, retail installment contracts are governed by Personal Property Law § 404.
    § 404. Credit service charge limitation
    1. A seller may, in a retail installment contract or obligation, contract for and, if so contracted for, the holder thereof may charge, receive and collect a credit service charge computed on the principal balance of the contract or obligation from the date thereof to and including the date when the final installment is payable, at the rate or rates agreed to by the buyer.

    That means that the parties dictate the terms of the finance charge rates. Note that it has to be in writing and signed off by the customer at the time of sale.

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