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The Installment Payment Order Can Be a Useful Enforcement Device

New York State's Civil Practice Law and Rules, Article 52, §5205 provides for certain personal property exemptions from application to the satisfaction of money judgments. One of those exemptions is ninety (90%) percent of the earnings of the judgment debtor for his personal services rendered within sixty (60) days before, and at any time after, an income execution is delivered to the Sheriff or Marshall or a motion is made to have the debtor's earnings used to satisfy the judgment.

Let's take the case of where a judgment debtor is regularly receiving money from some source and can afford to contribute more than the ten (10%) percent through an income execution toward the satisfaction of the judgment. New York State's Civil Practice Law and Rules §5226 can be a useful tool to the judgment creditor if the judgment debtor is regularly receiving money from some other source other than from income and can afford to contribute something, just as regularly, toward the satisfaction of the judgment.

STOP ATTEMPTS TO IMPEDE COLLECTION EFFORTS

What about a case where the judgment debtor is working without pay and/or without adequate compensation? One of the prime uses of the installment payment order under CPLR 5226 is in a situation where the judgment debtor is attempting to impede the judgment creditor's efforts to collect on a judgment by rendering services without adequate compensation. It is often easy for the judgment debtor to make it appear that he/she is not being paid for his/her services, or more likely that he/she is being paid very little.

It is up to the judgment creditor to produce the proof needed to establish that the services are being rendered, and their value, or at least to supply an evidentiary basis from which the Court can draw needed inferences. This can be done through the use of disclosure by serving upon an employer or someone else with knowledge, an information subpoena under CPLR 5224, along with questions and answers in connection with the information subpoena, or a subpoena duces tecum under CPLR 5223.

ESTABLISH A HIGHER INCOME TO INCREASE COLLECTION PERCENTAGE

Another function of the installment payment order is to reach the judgment debtor whose standard of living is high and regular enough to establish that he/she is getting ample income from somewhere, but the judgment creditor is not able to establish from where it is coming. The judgment creditor must garner proof of the debtor's activities, so as to convince the Court of this higher standard of living, or at least high enough to offer the creditor an opportunity to seek more than ten (10%) percent of his/her income.

An income execution issued under New York State's Civil Practice Law and Rules §5231 is limited to ten (10%) percent of the judgment debtor's wage or trust income. This ten (10%) percent is the converse of the ninety (90%) percent exemption for those income sources set forth in CPLR 5205(d). However, CPLR 5205(d) excepts from the ninety (90%) percent income execution, "such part as a court determines to be unnecessary for the reasonable requirements of the judgment debtor and his dependents". The most common vehicle for the courts to make such a determination is the application under CPLR 5226 for an installment payment order. Upon a creditor's motion under CPLR 5226, if the court finds that the judgment debtor, consistent with his family and other reasonable obligations, can afford to pay more than ten (10%) percent of his income to the judgment creditor, the court can set the amount of the excess that judgment debtor can afford and direct that the excess be regularly paid to the creditor. Therefore, it is appropriate for the judgment creditor to issue an income execution to the appropriate Sheriff or Marshall at the same time that the motion under CPLR 5226 is being made.

NEEDS HEARINGS

Before an installment payment order will issue against the judgment debtor, a "needs" hearing must be held. At the hearing, proof is adduced from which the court can determine what the needs of the debtor are so as to assess how much beyond his ten (10%) percent the debtor can afford to pay regularly toward the satisfaction of the judgment.

CONCLUSION

An installment payment order is an effective tool to enforce a money judgment. Creditors should not be relegated to just receiving ten (10%) percent of a judgment debtor's income through income from wages, salaries, trusts etc. Nevertheless, use of the CPLR 5226 motion, and its success, depends upon substantial investigation in advance by the judgment creditor, often including extensive use of the disclosure subpoenas of CPLR 5223 and 5224. The judgment creditor should come into court with as much evidence as possible to convince the court that the judgment debtor "is receiving or will receive" money from some source, preferably a regular source. The creditor should also be prepared to show circumstances suggesting that other enforcement devices under Article 52 of New York State's Civil Practice Law and Rules have not been effective to get at the money of the judgment debtor.

Categories: Money Judgments
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Law Offices of Alden B. Smith - New York Debt Collection Lawyer
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