Respondent Bank Attorney: Court Orders and Levies, J.P Morgan Chase Bank, N.A., Columbus, OH. Respondent /Judgment Debtor: Myriam Hodgeman. Following the entry of a default judgment against the judgment debtor on September 5, 2015 in the amount of $6,220.70, the petitioner now brings this special proceeding pursuant to CPLR §5225 to have the funds on deposit in the bank account of the judgment debtor at JP Morgan Chase Bank turned over to it in satisfaction of the outstanding unpaid judgment. The judgment debtor opposes the application. CPLR Article 52 sets for the procedures for the enforcement of a money judgment in New York. Such enforcement includes restraining a judgment debtor’s bank account to secure funds for later transfer to the judgment creditor through a turnover proceeding (Jackson v. Bank of Am., N.A., 149 AD3d 815 [2d Dept. 2017]). CPLR §5222-a, which was enacted as part of the Exempt Income Protection Act of 2008 (L 2008, ch 575 [EIPA]), was enacted to protect judgment debtors from having exempt funds restrained and seized, including social security benefits, public assistance, unemployment insurance and pension payments (see generally CPLR §5205). The EIPA precludes banks from restraining baseline minimum balances in a natural person’s account absent a court order. A judgment creditor may contest the judgment debtor’s claim of exemption by establishing a factual basis or a reasonable belief the judgment debtor’s account contains funds that are nonexempt (Midland Funding LLC v. Singleton, 35 Misc 3d 410 [Dist Ct. Nassau Co.] (citing CPRL §5222-a [d]). Procedural History Petitioner served an Information Subpoena on Chase Bank on February 27, 2020. Chase Bank sent a response letter to petitioner on March 10, 2020, identifying two accounts and a safety deposit box owned by the judgment debtor. Petitioner served a restraining notice on Chase Bank in an attempt to satisfy the judgment. On April 23, 2020, petitioner issued an Information Subpoena with Restraining Notice on Chase Bank. On April 24, 2020, Chase Bank sent a response letter to petitioner indicating the funds amounting to $17,398.84 would be restrained. On May 15, 2020, petitioner received an Exemption Claim Form from Chase Bank on behalf of the judgment debtor, indicating that all of the funds held in the account were exempt from levy. The funds included social security benefits, unemployment, payments from pensions and retirement accounts, income earned in the last 60 days (90 percent of which is exempt) and other. On May 15, 2020 petitioner contacted Chase Bank’s subpoena department to advise them that their office failed to provide petitioner with a timely notice of the filed exemption claim form. The Chase representative advised petitioner to submit another restraining notice. On May 15, 2020 petitioner issued a second Information Subpoena with Restraining Notice to Chase Bank. On May 15, 2020, a second Restraining Notice to Judgment Debtor and Exemption Claim Form were served on the judgment debtor. On May 18, 2020, Chase Bank advised petitioner that $17,398.84 in the account ending in 0950 had been restrained. On May 26, 2020, petitioner received a second Exemption Claim Form from Chase Bank on behalf of the judgment debtor, dated May 20, 2020, indicating that all the funds in the account were exempt. The judgment debtor claimed the source of the funds were social security, unemployment, payments from pension and retirement accounts; income earned in the last 60 days (90 percent of which is exempt); income earned while receiving SSI or public assistance and other. On May 27, 2020, petitioner objected to the judgment debtor’s claimed exemption. Petitioner purportedly faxed and certified mailed a Subpoena Duces Tecum to Chase Bank seeking information concerning the purported exempt accounts in question and directing the bank to appear at petitioner’s counsel’s office on or before June 2, 2020. The subpoena directed Chase Bank to produce the judgment debtor’s complete banking history from January 1, 2018 through present date. A copy of the subpoena is attached to the motion papers as Exhibit K. Evidentiary Hearing An evidentiary hearing may be held to establish the legitimacy of the judgment debtor’s claimed exemptions, wherein, “[t]he executed exemption claim form shall be prima facie evidence…the funds in the account are exempt funds. The burden of proof shall be upon the judgment creditor to establish the amount of funds that are not exempt” (CPLR §5222-a [d]). On November 20, 2020, an evidentiary hearing was held to determine if funds on deposit in a Chase Bank account maintained by judgment debtor Myriam Hodgeman were exempt from judgment enforcement. The pro se judgment debtor argued that the funds in her account include her retirement pension from France, social security, and unemployment benefits. Ms. Hodgeman also submitted a bank statement for the same account number for the period of July 1, 2020 through July 31, 2020, with an ending balance of $20,147.18. The July 2020 bank statement demonstrates a social security payment of $1,307.00 and pension payments of 341.08 and $289.47. Ms. Hodgeman did not present any further evidence demonstrating the source of the remaining funds in her account. CPLR 5222-a [d] does not specify what proof is needed to demonstrate some or all of the funds on deposit in the judgment debtor’s account are not exempt. However the law is clear that the judgment creditor has the burden of proving the remaining funds in the judgment debtor’s account are non-exempt. To meet its burden the judgment creditor could issue subpoenas to the bank in which the funds are deposited requiring a bank representative to appear on the date of the evidentiary hearing with bank statements and deposit records (Midland Funding LLC v. Singleton, 35 Misc 3d 410). In addition, the petitioner can call the judgment debtor to the stand as a witness and question her under oath regarding the source of the funds on deposit (Id.). Here petitioner failed to do either. Accordingly, the Court finds that the judgment creditor failed to rebut the judgment debtor’s claim that the funds in her bank JP Morgan Chase Bank Account are exempt from execution. Petition dismissed. This constitutes the Decision and Order of this Court. Dated: December 14, 2020
