Opinion
CV-028708-03/NY
06-29-2021
U.S. Equities Corp., Plaintiff, v. Aurea L. Casellas, Defendant.
Law Offices of Linda Strumpf, South Salem, for plaintiff. Aurea L. Casellas, plaintiff pro se.
Law Offices of Linda Strumpf, South Salem, for plaintiff. Aurea L. Casellas, plaintiff pro se. Richard Tsai, J.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion, Affirmation, Exhibits A-C RTCINH (EDDS Doc ID No.) Opposition (Electronically filed in UCMS) Affirmation in Reply, Exhibit D, Affirmation of Service 9RIQNY, OCYAUF
OPINION OF THE COURT
Pursuant to CPLR 5222-a (d) and CPLR 5240, plaintiff moves for an order denying defendant's claim of exemption to a restraining notice served upon a savings account held by defendant at Capital One bank, for an account number ending in 3988 (Motion Seq. No. 003). Defendant, who is self-represented, opposes the motion.
Plaintiff's motion raises the unsettled question of the burden of proof that a judgment creditor must meet to overcome the presumption created by an exemption claim form by the judgment debtor that restrained funds in a bank account are from sources exempt from restraint or execution.
BACKGROUND
On June 5, 2003, plaintiff U.S. Equities Corp. commenced this action against defendant Aurea L. Casellas, seeking to recover $5,486.32, with prejudgment interest from November 6, 1997, and attorneys' fees in the amount of $1,371.58. According to the endorsed complaint, defendant had an agreement with Mitsubishi Motors Credit, wherein defendant agreed to pay for debt incurred either by an advance to defendant, by use of a charge and/or credit card issued to defendant, or as a result of monies loaned pursuant to a loan note at defendant's request. Plaintiff was allegedly assigned all rights to the account in the normal course of business.
On December 8, 2003, a default judgment was entered in favor of plaintiff against defendant in the sum of $5,486.32, with interest of $6,454.32, and $145.00 in costs and disbursements, for a total amount of $12,085.64 (see plaintiff's exhibit C in support of motion).
According to court records, on or about October 20, 2017, defendant brought a motion, by order to show cause, to vacate the judgment (Motion Sequence No. 001), which was returnable on November 24, 2017. Court records indicate that, on November 24, 2017, defendant's motion was denied, no appearance either side.
On or about December 13, 2017, defendant brought another order to show cause to vacate the default judgment, stating, "I was informed by my job that there was a judgment against me"; "I do not owe this money. This judgment is in reference to a shady deal. This car was already paid for by the dealership." Defendant stated that she was making another application because "I came on my service date to get papers but court was closed (Veterans Day)." In her proposed answer, defendant asserted a proposed counterclaim for $2,400 for "money being garnished and money that may be garnished in the future." Another judge of this court declined to sign the proposed order to show cause, stating "Defendant's stated excuse does not explain her failure to appear on November 24, 2017, which was not a court holiday."
This proposed order to show cause was not assigned a motion sequence number.
On or about December 27, 2017, defendant brought another motion, by order to show cause, to vacate the judgment (Motion Sequence No. 002), based on nearly identical papers submitted in the proposed order to show cause which was declined. Defendant added, "I didn't know they were signed so I didn't know I needed to come to court the next day." This order to show cause was originally made returnable on January 12, 2018, and court records indicate it was adjourned to February 14, 2018.
By a decision and order entered on February 27, 2018, another judge of this court wrote,
"Defendant's request to vacate a judgment on default is granted solely to the extent of restoring the matter to the trial calendar. A review of the opposition papers clearly reveal that defendant had notice of this judgment approximately 14 years ago, as plaintiff had directed defendants [illegible] institution to release funds that were being held, as said funds were from public assistance, and could not be restrained ( see exh D).
Accordingly, the OSC is granted solely to the extent of setting the matter down for a conference. The judgment + all restraints remain in effect @ this time. The matter shall appear on the court calendar on March 15, 2018 @ 9:30 . . ."
According to court records, the court conference on March 15, 2018 was adjourned to June 22, 2018, and again to September 13, 2018. According to notations on the court file, the matter was adjourned to September 13, 2018 for "cont'd conferencing for settlement purposes."
According to notations on the court file, on September 13, 2018, "case is withdrawn per plaintiff's counsel after conference. Defendant submitted documentation that she is on unemployment which is exempt from collection." According to court records, the matter was marked off.
On or about April 6, 2021, plaintiff served the instant motion upon defendant, seeking "an order pursuant to CPLR § 5240 denying the exemption claim of defendant." According to an affidavit of service, the motion was served upon defendant by mail. According to an affirmation of service and fax transmittal sheets, the motion was served upon Capital One bank by fax on April 6, 2021. The motion was made returnable on April 19, 2021.
According to the moving papers, plaintiff had apparently served a restraining notice and an information subpoena upon Capital One, N.A., which responded that defendant held a total of $9,416.39 in three separate accounts: a savings account ending in 3988; and two checking accounts ending in 1297 and 4118 (see plaintiff's exhibit B in support of motion, Questions and Answers in Connection with Information Subpoena). The amount on deposit in defendant's savings account ending in 3988 was $5,508.32, and the amount held was $1,908.32 (id.). The bank responded that there was activity in the account within the last 60 days (id.).
According to plaintiff's counsel, she received a completed exemption claim form on April 6, 2021 in which defendant "checked off the box 'Unemployment Insurance'" as a source of the exempt funds but "attached no documentation whatsoever to her exemption claim form which would show that any of the funds restrained are from any exempt source" (affirmation of plaintiff's counsel in support of motion ¶ 2).
Plaintiff's motion was originally returnable on April 19, 2021, but was adjourned to May 7, 2021 because defendant did not appear. On May 7, 2021, both parties appeared, and, with the plaintiff's consent, this court granted defendant additional time to submit opposition papers to the motion and adjourned the matter to June 9, 2021. Thereafter, at defendant's request, the matter was again adjourned on consent to June 22, 2021 at 2:30 p.m.
On or about June 15, 2021, plaintiff filed reply papers via the Electronic Document Delivery Service (EDDS). According to plaintiff's counsel, defendant sent two emails, annexed as plaintiff's exhibit D.
On June 22, 2021 at 2:30 PM, this court held a hearing on a stenographic record (Robin Lindner, court reporter). Plaintiff did not call any witnesses and did not submit any documents into evidence, other than the exhibits previously submitted in the moving papers and reply papers.
Defendant testified at the hearing and was cross-examined by plaintiff's counsel. Defendant did not offer any documents into evidence at the hearing. However, defendant averred that her opposition papers had been emailed to plaintiff's counsel and to the court on June 3, 2021. Plaintiff's counsel annexed defendant's opposition papers as Exhibit D in plaintiff's reply (reply affirmation of defendant's counsel in support of motion ¶ 2). At the hearing, plaintiff's counsel had no objection to admission of defendant's submissions into evidence. The hearing concluded at approximately 3:27 PM.
FINDINGS OF FACT
Recitation, as required by CPLR 4213 (b) , of the findings of essential facts relied upon by the court:
It is undisputed that defendant maintains three bank accounts with Capital One, N.A.: a savings account ending in 3988; and two checking accounts ending in 1297 and 4118 (see plaintiff's exhibit B in support of motion, Questions and Answers in Connection with Information Subpoena).
Defendant credibly testified that she received unemployment insurance benefits in the weekly amount of $182.00 and additional unemployment insurance benefits in $600.00 installments from the New York State Department of Labor. Defendant's testimony was corroborated by a printout entitled "Official Record of Benefit Payment History" from the Department of Labor (see plaintiff's Exhibit A in support of motion), and an account detail statement for the period of June 16, 2020 to July 15, 2020 (seeplaintiff's exhibit D in reply). Defendant credibly testified that the unemployment benefits were deposited directly into a checking account, because they could not be deposited directly into a savings account.
On June 22, 2020, prior to the first direct deposit of unemployment benefits, the balance of defendant's account was $389.90 (see id.). From June 22, 2020 through July 2, 2020, defendant withdrew $893.96 (see id.).
From June 23, 2020 through July 2, 2020, defendant received 13 direct deposits in the amount of $182.00, and 11 direct deposits in the amount of $600.00 in unemployment benefits, for a total of $8,966.00 (see plaintiff's exhibit D). On July 2, 2020, defendant deposited $1,000 in cash (see id.). This cash deposit was a monthly payment from the father of defendant's daughter, based on the defendant's credible testimony and a letter dated June 3, 2021, to which plaintiff did not object as evidence (see plaintiff's exhibit D in reply). On the same day, defendant made a $60.00 cash deposit. No other deposits were made to the account for the period of June 16, 2020 to July 15, 2020.
On July 2, 2020, defendant transferred $7,486.00 to her savings account ending in 3988, and defendant also transferred $100.00 to checking account ending in 4118 (see plaintiff's exhibit D in reply). Because the statement reflects transfers to defendant's savings account ending in 3988 and checking account ending in 4118, the statement therefore reflects account activity for defendant's checking account ending in 1297. At the time of the transfer, the account balance in that checking account was $9,612.17.
Defendant credibly testified that, after the transfer of $7,486 into her savings account in July 2020, no further deposits were made to her savings account ending in 3988. Defendant stated that she had never had so much money in her account, and she attributed this increase to the pandemic relief payments that she received at that time. Defendant credibly explained that because she had increased funds in her checking account, she decided to transfer a portion of those funds into her savings account.
It is undisputed that, when the restraining notice was served upon Capital One bank, the balance in defendant's savings account ending in 3988 was $5,508.32.
CONCLUSIONS OF LAW
CPLR 5222-a was enacted as part of the Exempt Income Protection Act of 2008 (EIPA), a larger overhaul of Article 52, "for the purpose of protecting judgment debtors from the restraint or execution of certain income which is exempt from debt collection by federal and state law" (Distressed Holdings, LLC v Ehrler, 113 AD3d 111, 112 [2d Dept 2013]). "[P]rior to 2008 banks served with restraining notices often inadvertently froze accounts containing income from these sources, leaving judgment debtors without access to much-needed exempt monies" (Cruz v TD Bank, N.A., 22 NY3d 61, 66 [2013]). "Th[is] bar[red] the debtor's access to the account, and the moneys in the account [which] may be the only funds available to pay for—literally—the debtor's daily bread" (Richard C. Reilly, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C5222-a:1; see Jackson v Bank of Am., N.A., 40 Misc 3d 949, 961 [Sup Ct, Kings County 2013], affd 149 AD3d 815 [2d Dept 2017] [discussing legislative concerns of the difficulty debtors experienced to get an account released]).
In attempting to ameliorate such problems, the EIPA "restricted the scope of the restraint that can be implemented against the bank account of a natural person and created a new procedure aimed at ensuring that this class of judgment debtors is able to retain access to exempt funds" (Cruz, 22 NY3d at 66). CPLR 5222-a (b) (1) requires that, when a judgment creditor serves a bank with a restraining notice on the judgment debtor's account, the judgment creditor must also include with the restraining notice two copies of an exemption claim notice and exemption claim form, or else the restraining notice is void.
Within two business days of receipt of those documents, the bank must then mail the exemption notice and exemption claim forms to the judgment debtor (CPLR 5222-a [b] [3]). The judgment debtor can claim an exemption "by simply checking the line on the Exemption Claim Form next to the source of the exempt income the judgment debtor claims is on deposit in the account" and mailing the form to the judgment creditor and the bank (Midland Funding LLC v Singleton, 34 Misc 3d 798, 801 [Nassau Dist Ct 2011]).
If the judgment creditor returns the exemption claim form within 20 days of the postmark date on the correspondence from the bank, the bank must release the funds within eight days of the postmark date on the envelope containing the executed exemption claim form, unless the judgment creditor moves for a hearing to object to the claimed exemption during that time (CPLR 5222-a [c][1]-[3]).
The judgment creditor must move within eight days after either the postmark date on the envelope containing the exemption claim form, or the date of personal delivery of the executed exemption claim form to the banking institution, and the judgment creditor's motion must be served on both the judgment debtor and the bank (CPLR 5222-a [d]). The affirmation or affidavit in support of the motion cannot be conclusory; it must show a factual basis which demonstrates a reasonable belief that such judgment debtor's account contains funds that are not exempt from execution and the amount of such nonexempt funds (id.).
Although not raised by defendant, this court notes that plaintiff did not submit any evidence establishing that its motion was timely made, insofar as the record does not contain any evidence of the date postmarked on the correspondence containing the completed exemption claim form (see Matter of Recovery of Judgment, LLC v Warren, 91 AD3d 656, 657 [2d Dept 2012] [judgment debtor failed to demonstrate exemption form was timely mailed because he did not submit evidence of the date postmarked on correspondence from bank]). Plaintiff's counsel only stated the date when the exemption claim form was received—not when it was postmarked (see affirmation of plaintiff's counsel ¶ 2).
At the hearing, "the executed exemption claim form" is "prima facie evidence" that the claimed funds are exempt (CPLR 5222-a [d]).
As explained in the note to rule 3.12 of the Guide to New York Evidence (Ancient Filed Maps, Surveys and Real Property), "The Appellate Division has held that the 'prima facie' language creates a rebuttable presumption of the accuracy of the document" (see also Vincent C. Alexander, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR 4518:9 ["It is submitted that, in civil actions, the term 'prima facie evidence' should have the effect of a presumption whenever used in Article 45, or other statutory provisions, unless the Legislature has explicitly provided otherwise"]). Thus, the completed exemption form by the judgment debtor creates a rebuttable presumption (see Midland Funding LLC v Singleton, 35 Misc 3d 410, 417 [Nassau Dist Ct 2012] [CPLR 5222-a does not provide that mailing of the exemption claim form, in itself, was conclusive proof of an exemption]).
CPLR 5222-a (d) provides that "[t]he burden of proof shall be upon the judgment creditor to establish the amount of funds that are not exempt." To determine whether plaintiff met its burden at the hearing, this court must first determine the burden of proof necessary to rebut the presumption of the exemption claim form.
Rule 3.01 (3) (c) of the Guide to New York Evidence states, "Unless the applicable statute or decisional law provides otherwise, the burden of persuasion necessary to rebut a presumption is 'substantial evidence.'" "Subdivision (3) (c) recognizes that there is no uniform rule in New York with respect to the burden of proof necessary to rebut a presumption. In most, but not all, of the presumptions of New York, the burden of proof is by 'substantial evidence'" (Guide to NY Evid rule 3.01, Presumptions in Civil Proceedings, Note at 6 [internal quotation marks omitted]).
"According to the Advisory Committee on Practice and Procedure, which drafted the language of CPLR 4518(b) . . . :(Vincent C. Alexander, Practice Commentaries, McKinney's Cons Law of NY, Book 7B, CPLR 4518:9, quoting NY Advisory Comm on Prac & Proc, Second Prelim Rep, Legis Doc No.13, at 267 [1958]).
The term 'prima facie' has been substituted for 'presumptive' throughout this title for reasons of consistency without intending any change in meaning. As used, the term means a presumption which shifts the burden of coming forward and not the burden of persuasion. It is rebutted when evidence contrary to the presumed fact sufficient to support a finding of its negative has been introduced"
CPLR 5222-a (d) does not specify the burden of proof to overcome the presumption (accord Singleton, 35 Misc 3d at 414). Neither does there appear to be any decisional law setting forth the evidentiary standard that should be applied to establish that some or all of the funds on deposit in the account are not exempt (see id; cf. Pinasco v. Ara, 219 AD2d 540, 540 [1st Dept1995] [presumption under Banking Law § 675 that funds are held in joint tenancy as joint property of the account owners may be rebutted by clear and convincing evidence]).
Thus, because no statute or decisional law provides otherwise, this court concludes that, in a hearing to determine the validity of an exemption claimed by the judgment debtor held pursuant to CPLR 5222-a (d), the judgment creditor has the burden to establish, by substantial evidence, that restrained funds in the judgment debtor's bank account do not come from exempt sources.
"Substantial evidence is less than a preponderance of the evidence, and means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact by its solid nature and ability to inspire confidence, which does not rise from bare surmise, conjecture, speculation or rumor"(Matter of Rock v Rhea, 114 AD3d 578, 580—81 [1st Dept 2014] [internal quotation marks, alteration and citation omitted]). "[A]s a burden of proof, it demands only that a given inference is reasonable and plausible, not necessarily the most probable" (Matter of Miller v DeBuono, 90 NY2d 783, 793 [1997]). "Once the presumption is rebutted, the party relying on the presumption has the burden of coming forward with evidence establishing the fact" (Jerome Prince, Richardson on Evidence § 3-104, citing Denio v State of New York, 7 NY3d 159, 168 [2006]).
Insofar as defendant's bank restrained only defendant's savings account, the legal question presented is whether the exemption that defendant claimed to the $1,908.32 restrained in defendant's savings account should be denied. Plaintiff does not contend that the bank should have restrained more money in the savings account; nor does plaintiff dispute the bank's decision not to restrain funds in defendant's other accounts.
Citing Midland Funding LLC v Singleton (35 Misc 3d 410), plaintiff argues that the exemption should be denied because defendant "attached no documentation whatsoever to her exemption claim form which would show that any of the funds restrained are from any exempt source" (affirmation of plaintiff's counsel in support of motion ¶ 2). However, this argument is unavailing. It bears repeating that the executed exemption claim form alone constitutes "prima facie evidence" that the claimed funds are exempt (CPLR 5222-a [d]). "CPLR § 5222—a does not require judgment debtors to supply any supporting documents with their Exemption Claim Form. Thus, a judgment debtor's failure to submit any documents with their Exemption Claim Form does not render the Exemption Claim Form invalid or even suspect" (Midland Funding LLC v Roberts, 37 Misc 3d 617, 617 [Sup Ct, Sullivan County 2012]).
It appears that defendant did, in fact, send to plaintiff's counsel some written proof that her money was exempt. The statutorily required exemption notice states, in relevant part: "Proof can include an award letter from the government, an annual statement from your pension, pay stubs, copies of checks, bank records showing the last two months of account activity, or other papers showing that the money in your bank account is exempt" (CPLR 5222-a [b] [4] [a]). Here, defendant apparently submitted a copy of the "Official Record of Benefit Payment History" from the Department of Labor of her unemployment insurance benefits (see plaintiff's exhibit A in support of motion).
However, that document itself did not show the account into which the benefits were being deposited, and the document indicated only what defendant received on a weekly basis. The printout alone would only have established that defendant has received income from an exempt source, but would not have established that all of the funds in the restrained account were from unemployment insurance benefits.
Plaintiff's reliance upon Singleton is misplaced. There, the judgment creditor moved for a hearing to contest the exemption claimed by the judgment debtor to a restraining notice on a bank account. However, the judgment debtor repeatedly failed to appear at the hearing, whereas the judgment creditor had submitted evidence that some of the funds were from non-exempt sources. In view of the judgment debtor's repeated failures to appear at the hearing, the court drew adverse inferences against the judgment debtor and found that the funds on deposit in the judgment debtor's bank account were not exempt from attachment or execution (Singleton, 35 Misc 3d at 416).
The court reasoned,
"The legislature, when enacting EIPA, could not possibly have intended to permit a person to obtain an exemption simply by checking a box on the Exemption Claim Form, signing that form and timely mailing it back to the judgment creditor's attorney. Such a determination would permit judgment debtors to obtain an exemption without having any basis for claiming an exemption or presenting any proof supporting the claimed exemption. . . .
In this circumstance, if the court were to find that Singleton is entitled to an exemption simply because she mailed the exemption claim form back to Midland's attorney, the court would be making the timely mailing of the exemption claim form conclusive proof
of an entitlement to an exemption. CPLR 5222-a does not provide for or require this"(id.). Thus, when read in context, Singleton's discussion of the legislature's intent was the rationale for its holding that the presumption created by the exemption claim form was not a conclusive, irrebuttable presumption.
Singleton did not hold, as plaintiff urges, that the initial burden of proof at the hearing was upon the judgment debtor to produce evidence that the funds came from exempt sources. Such an interpretation would contravene the express language of CPLR 5222-a (d). "The [EIPA] remedied an imbalance in the prior law which unfairly placed the burden on debtors to show that their funds were exempt, at a time when they were being deprived access to those funds" (Distressed Holdings, LLC, 113 AD3d at 115). Indeed, in a prior decision, the court held, "[t]he judgment debtor may but is not required to provide the attorney for the judgment creditor or judgment creditor with documentation or proof supporting the claim of exemption (Singleton, 34 Misc 3d at 801). Instead, Singleton stands for the proposition that the judgment creditor's evidence, coupled with adverse inferences drawn against the judgment debtor, were sufficient to rebut the presumption created by the exemption claim form.
Unlike Singleton, defendant appeared at the hearing, and plaintiff did not submit copies of any banking statements from defendant's savings account ending in 3988 to show that any of the funds came from non-exempt sources. Instead, plaintiff relies solely on the fact that the bank "only held $1,908.32" from defendant's savings account as proof that "approximately 80% of the funds in the account, or $7,508.07[,] was exempt" (affirmation of plaintiff's counsel in support of motion ¶ 3).
The fact that the bank partially restrained defendant's savings account might serve as the factual basis for the judgment creditor's reasonable belief that some funds in the account came from non-exempt sources. However, that fact, in itself, does not constitute substantial evidence to rebut the presumption created by the exemption claim form. Plaintiff submitted no evidence as to basis for the bank's determination that only $1,908.32 should be restrained. Plaintiff did not subpoena a bank representative to appear on the date of the evidentiary hearing with bank statements and deposit records (see Yost & Campbell of Rockland Inc. v Hodgeman, 69 Misc 3d 1223[A], 2020 NY Slip Op 51474[U] [Mounty Vernon City Ct 2020]). Thus, plaintiff did not overcome the presumption created by the exemption claim form.
Even assuming, for the sake of argument, that plaintiff overcame the presumption of the exemption claim form, defendant's credible testimony and exhibits submitted in opposition to plaintiff's motion established that the funds in defendant's savings account ending in defendant's savings account ending in 3988 were from unemployment insurance benefits.
The letter from the father of defendant's daughter, stating that he contributed $1,000 monthly for his daughter "as long as it is financially possible" (plaintiff's exhibit D) was not sufficient to establish that the $1,000 cash deposit constituted child support. The letter neither stated nor implied that the father was under any court-ordered obligation to provide child support to his daughter (see CPLR 5205 [d] [3]).
Defendant had received $8,966.00 in unemployment insurance benefits in her checking account ending in 1297, and defendant then transferred $7,486.00 of the $9,612.17 in that account to her savings account ending in 3988.
Plaintiff argues that "any statement from June-July 2020 bears no relation to what funds were in the account at the time of the restraint" (reply affirmation of plaintiff's counsel ¶ 4). However, the bulk of the funds in defendant's checking account consisted of unemployment insurance benefits, $7,486.00 of which were then transferred into defendant's saving account. Defendant also credibly testified that no other funds were deposited into her savings account after July 2, 2020.
Although neither side submitted any evidence of the amount in defendant's saving account before the transfer on July 2, 2020, where an account contains some funds from exempt sources, and other funds from unknown sources, "the judgment creditor shall apply the lowest intermediate balance principle of accounting" (CPLR 5222-a [c] [4]). "Under the lowest intermediate balance principle, exempt funds are the last funds to leave the account. For example, if $1,000 of exempt funds and $1,000 of non-exempt funds are deposited, and then $1,000 is withdrawn, the remaining $1,000 is exempt" (see Arias v Gutman, Mintz, Baker & Sonnenfeldt LLP, 875 F3d 128, 132 n 2 [2d Cir 2017]; see General Motors Acceptance Corp. v Norstar Bank, N.A., 141 Misc 2d 349, 355 [Sup Ct, Erie County 1988] ["The 'lowest intermediate balance' accounting method is based on the assumption that the debtor spends the proceeds in which there is a security interest last]).
Here, defendant's checking account ending in 1297 had a balance of $389.90 on June 22, 2020, prior to the first direct deposit of unemployment benefits. From June 22, 2020 through July 2, 2020, defendant withdrew $893.96 from the account. Thus, on the date when defendant transferred $7,486.00 to her savings account ending in 3988, the vast majority of the funds are deemed traceable to the exempt unemployment insurance benefits. For the purpose of simplifying the calculations, this court assumes that $1,060.00 of the $7,486.00 transferred from defendant's checking account to her savings account ending 3988 was not from exempt sources, and so the amount transferred to defendant's savings account ending 3988 from exempt sources would be $6,426.00.
By application of the lowest intermediate balance principle of accounting, whatever funds were present in defendant's savings account from non-exempt or unknown sources before the transfers on July 2, 2020 were already spent by the time the restraining notice was sent. It is undisputed that the amount in defendant's savings account when the restraining notice was served upon Capital One bank was $5,508.32, which is less than the amount of exempt funds transferred into the savings account on July 2, 2020. Defendant credibly testified that no other deposits were made into the savings account since July 2, 2020.
Therefore, the restraint upon defendant's savings account ending in 3988 is deemed void, because plaintiff's objection to the exemption claim form is overruled (see CPLR 5222-a [c] [4] [deeming restraining notice void where judgment creditor did not object to exemption claim form]).
CONCLUSION
Upon the foregoing cited papers, it is hereby ORDERED that, after a hearing, the funds restrained in defendant's savings account with Capital One bank, for the account number ending in 3988, in the amount of $1,908.32, are exempt from restraint and execution, and plaintiff's motion for an order denying defendant's claim of exemption to a restraining notice (Motion Seq. No. 003) is DENIED; and it is further
ORDERED that the restraining notice on the savings account held by defendant at Capital One Bank for the account number ending in 3988 is deemed void; and it is further
ORDERED that plaintiff's counsel is directed to serve a copy of this order upon defendant and Capital One bank no later than two business days after issuance of this order.
This constitutes the decision and order of the court. Dated: June 29, 2021 New York, New York RICHARD TSAI, J. Judge of the Civil Court