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Restraining notice on bank acct. stayed


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I asked for a received an order to show cause why a default judgement against me by Cavalry SPV I should not be vacated and  told the court that I believed that the matter had already be settled via stipulation in an earlier case. I had never been served by Cavalry and did not learn of the suit until my bank notified me that Cavalry's attorneys, Schachter Portnoy had placed a restraining notice on my bank account. The court granted the order to show cause and stayed the restraining notice. My question is, what is the effect of staying the restraining notice? Can I now access my bank account? My bank says no, and I'm very worried because my husband and I have no other account and our rent is due on the 15th. and if we can't get into our account, we'll be unable to pay our rent and any other bills. In addition, my husband has his paychecks deposited directly and I don't think we'll be able to stop that in time to prevent his next check from going into that account.

 

What is the effect of a stay in this situation? How long does it last? I have not worked in nearly 3 years and all of the money in the account is my husband's salary. Naturally, he's very angry about the situation, which makes it harder to cope with this. But if he could show that all the money in the account is from his salary, could he have the restraining notice removed entirely? Could he simply close the account and open one in his name only?

 

I'm trying to juggle a lot of things right now...the lawsuit by Cavalry, another problem with Midland which I thought had been settled, and now this. 

 

Any advice or can anyone point me to a resource with the answers I need?

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Get with the bank on Monday when they reopen. You have a court order showing the bank account is to be left alone.

 

Look at all your court records for current and past cases all related to this and get them cleaned up with the help of a consumer atty who will get paid out of the FDCPA violations. Pull your credit reports and look them over for errors.

 

Your stipulation, does it show without prejudice? If so, Midland probably sold the debt off as soon as you signed it so it was ripe for the buyer Cavalry to file a new lawsuit until the statute of limitation expired. If it shows with prejudice, the debt was done with when that was signed but they errored not having it entered with the court.

 

Did the original Midland lawsuit get closed by the court on its own for lack of prosecution when Midland didn't do anything on the case or was it still open when Calvary filed a new suit?

 

Definitely go in to the consumer attorney for a free consultation.

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  • 4 weeks later...

Thanks to all for your advice. I'm playing catch up here...again. I've been ill & hospitalized on and off the last month and scheduled for surgery next week, so I missed the court date for the order to show cause. The clerk's office said I didn't need to be there, but I checked online to see what the outcome was and saw that Schacter Portnoy filed an affidavit in opposition, so today I have to get to the courthouse and speak to the pro se attorney about how I handle this. Our bank has so far not been cooperative. I showed them the order to show cause, signed by the judge, directing that the restraining notice be stayed. But the bank insists that they have to do what Schacter Portnoy wants! My husband managed to stop his paycheck direct deposit, but the restraining notice is on both the checking and savings, and since I haven't been able to get to the courthouse to sort out what to do, we're behind on utilities and other bills because our money is locked up. The return date for the order to show cause was yesterday, and while court website shows Schacter Portnoy filed an affidavit in opposition, it doesn't say when the court will act on it. So I guess I have to find that out, too. I think I have the option to file a Reply Affidavit, but again, I'll have to get to the pro se attorney to get advice about that. If the court does not agree to vacate the judgement, is there any other way to sort of hit the re-set button? I think if I could tackle this from the beginning I have a chance of prevailing. I just wonder if it's too late.

 

As for the stipulation offered by Midland, in the process of handling the other matter, I learned that one month before they offered me the stipulation with prejudice withdrawing their action, they had made a motion to move the matter to another court. The motion was granted. But since they never filed the stipulation with the court, I wonder if they are bound by it? Why move the matter to another court and then a month later offer a stipulation withdrawing it? 

 

I hope I can get this all sorted out before I have surgery, because I don't know how long I'll be laid up afterwards. I'm hoping that even if the judge 

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But the bank insists that they have to do what Schacter Portnoy wants!

The funds in the accounts should just sit there with neither party able to touch (see exemptions in the links) until the judgment is vacated or decided in their favor.

 

But since they never filed the stipulation with the court, I wonder if they are bound by it?

Bring that with you to court.

 

You may want to research New York (as well as NYC) protections.

Your bank may not freeze the first $1,920 in your bank or credit union account to pay a judgment, whether or not your account has exempt benefits.

 

If you feel your bank has acted incorrectly after researching, contact New York State Department of Financial Services at 877-BANK-NYS (877-226-5697)or http://www.dfs.ny.gov/consumer/fileacomplaint.htm.

http://www.nyc.gov/html/dca/downloads/pdf/web_debt_collection_fact_sheet.pdf

 

 

I had never been served by Cavalry and did not learn of the suit until my bank notified me that Cavalry's attorneys, Schachter Portnoy had placed a restraining notice on my bank account.

If your first notice of the court case is a frozen bank account, you have not received proper notice under the law.

 

Joint account-

Under Banking Law 678 , if you can prove that you added the other person to your account for convenience only, your entire account will be released.

Under Banking Law 675, the judgment creditor cannot have more than half the money in the account unless it proves that the money belongs to the other person, and not to you.  This is because the law presumes that half the money in the account belongs to you and half belongs to the other person.

http://www.neweconomynyc.org/frozen-bank-accounts/

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I would check into Cavalry SPV I licensing status and call the department of financial services to check on their status and the requirements. I know in NYC it is required, but perhaps you are upstate. Also, I noticed in other states that Cavalry's former entities have been licensed, but they are somehow behind on this new spinoff of their company...Cavalry Portfolio, etc. Anyway, if they have failed the licensing requirements, this could work in your favor to get the judgment vacated.

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