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Christopher K. Werner

Christopher Werner’s Answers

2 total

  • I need to know how to over turn a judgement and garnishment

    I received a personal loan for 7,000 11yrs ago. 4yrs into the loan I got behind on payments. Sent what I could afford. However about 2yrs ago I got a judgement for 12,000 for that loan. Now calculating what I paid before the garnishment and now ...

    Christopher’s Answer

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    Judgments can be vacated under CPLR 5015. The two most common approaches are: lack of jurisdiction and "excusable neglect". Lack of jurisdiction may be due to improper service etc. This is more straightforward and unlimited in time. The second requires (a) "excusable neglect" - a good reason for failing to respond ("answer") the suit after service of process and (b) "meritorious defense" - a good defense to the suit. Both must be established. This alternative must be pursued within one year after the judgment debtor received notice of the judgment.. It seems that it has been more than a year after you knew about the judgment and may eliminate this second option. As important is that you seem to acknowledge the debt. This would negate the "meritorious defense" aspect.

    Judgments carry interest at 9% which is why the total of this old judgment could be quite high. If the judgment is in the hands of the Sheriff for enforcement, 5% poundage is added. Unfortunately, the total alone, is not grounds to vacate.

    You might look at other options such as settlement (typically with a lump sum) or, perhaps bankruptcy. Judgments are enforceable for 20 years (and can be extended)..

    I question if you might have had a statute of limitations defense as suit must be commenced within 6 years of default or last payment or acknowledgement of the debt. However, it would likely be too late to assert that defense as discussed above..

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  • Someone says they will be retrieving belongings on a certain day and doesn't, how long before it's considered abandoned?

    A person renting a room was asked to leave the property due to money missing on 8-15-12. He stated on 8-21-12 that he would be there at 8am the next morning to retrieve his things. He showed up at 12pm on 8-22-12 without a truck and said he was ju...

    Christopher’s Answer

    There is no specific statute on property apparently abandoned after a teneant leaves possession of a rented property. The landlor's responsibility is to act "reasonably" under the circumstances. A landlord, however, can not prevent the tenant from taking his property - but that is not the question here.

    Proper action by the landlord largely depends on the nature and value of the property. If what remains are just miscellaneous items of little value, notice to the tenant should be given of the intent to discard the items after a set date passes. This is best done in writing delivered to the tenant or mailed to his known current residence. If the property is of significant value, which I assume it is not, a court proceeding might have to be commenced but I expect this is not at all the circumstance here.

    The tenant's failure to remove the items within a reasonable period of time might also warrant the landlord to reasonably believe they are abandoned and discard them. What is a reasonable time again varies with the nature of the property and the tenant's expressed intentions.

    Here - give written notice to the tenant of a specific date by which the tenant is to remove his property and, thereafter, the landlord will consider the property abandoned and intends to discard them.

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