In this debt collection proceeding, a judgment by Erin Capital Management was used to attempt an asset levy against the judgment debtor.
ERIN CAPITAL MANAGEMENT, LLC v. CELIS
Nassau County District Court, First District, New York
A judgment had previously been entered in favor of Erin Capital Mgmt against Ms. Celis in the amount of $3,840.88. Now the judgment collection attorneys, Eltman Eltman & Cooper, were attempting to enforce it by seizing a car owned by the debtor. The vehicle at issue was a valuable Mercedes Benz S430 luxury sedan.
New York CPLR § 5225(a) permits this judgment enforcement when the judgment debtor is the sole owner of the car and is currently in possession of the car.
Judgment by Erin Capital Management Insufficient in Asset Levy
Erin Capital Management failed to prove that Ms. Celis was the sole owner of the automobile. In fact, the evidence by Erin Capital Management showed a second individual was also on title to the vehicle.
Notice of a judgment execution proceeding was never served upon this second individual, so he was unable to defend himself in court. Obviously, this is not allowed. In fact, the judge ruled that a separate lawsuit would have to be filed against this second owner of the vehicle.
The judge was also dissatisfied with the evidence offered by the judgment creditor’s lawyer. All that was offered was a printout from the Accurint website. This website offers a “public records search” that informs a judgment holder of the debtor’s assets.
The judge found the Accurint report unreliable. While it may constitute a search of public records, it itself is not a public record. The court would not rely upon evidence from a third party data company that had no personal knowledge of the Department of Motor Vehicle records.
With respect to current possession of the Mercedes Benz, there was no clear evidence that the judgment debtor had the car. On the contrary, the evidence indicated the car had previously been used by a variety of different individuals. These users could have been the judgment debtor’s family or friends.
In order to deprive a third party of possession of the vehicle, a legal notice must be served upon them, even though they are not an owner of the asset. After all, if Ms. Celis is not in possession of the vehicle, she may not reasonably be able to deliver it to Erin Capital Management even if the judge ordered her to do so.
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