Civial FAQ and Definitions

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Civil Frequentyly Asked Questions (FAQ's)

Civil FAQ's

 

General References: Civil Practice Law and Rules (CPLR) of New York State, sections 8011, 8012, 8013 & 8014;  County Law, sections 406, 407 & 650; Public Officers Law, sections 67, 70 & 205.

 

All fees & mileage are payable in advance and are per party to be served. Unless otherwise noted, add mileage. You must send the proper type and quantity of process indicated, with the correct fees and mileage, with a letter of instruction in order for the papers to be processed. Omissions, errors, illegibility, untimeliness, etc., will prevent your papers from being docketed with our office. Full and complete addresses including zip codes are required. Acceptable forms of payment include attorney check or money order. For all mandates, e.g., executions, evictions & court orders involving enforcement activity, at least one original with a handwritten ink signature must be delivered to us (CPLR Art.52, generally; NYCRR 130-1; etc.). Documents with the court's raised seal are acceptable. Generally, where copies are required, such as for income and property executions, photocopies are sufficient; the filing party must determine whether clerk or attorney certified copies are required in other cases. The Sheriff's Office does not supply legal forms, nor can we complete them. Some courts may supply forms while some do not. There are several suppliers or publishers of legal forms and you should consult the various telephone directories.

 

Attachment Civil Arrest  Eviction

Family Court Process  Income Execution Order of Seizure 

Order to Show Cause  Property Execution Subpoena

Summons Sheriff's Sale  

 

 

Fees are based on type of item to be served and mileage is based on the location the item is to be served at – refer to the Fees and Mileage Chart.

 

 

Definitions:

 

Attachment:  This special proceeding is employed primarily where the plaintiff seeks a money judgment.  It is a court order which directs the sheriff to levy upon property in which the defendant has an interest and to retain custody of that property until the court determines final disposition.  The order must be directed to the sheriff and should specify whether the levy is to be made by service or seizure.  The court index number must appear on the order.  The order must be accompanied by an undertaking which must be for at least $500.00, must comply with CPLR Art.25, and be approved by the court.  If the summons & complaint is to be served by the sheriff, sufficient copies must be delivered to the sheriff.  The plaintiff must provide particular direction as to what property is to be levied upon, its location, and documentation establishing the defendant’s interest in it.  Advances for moving, storage, etc. may be necessary.

 

NOTE:  If the order is granted ex-parte, particular attention must be paid to the “confirmation” procedure and the order of attachment must include specific direction relative to it; an order omitting this information will not be accepted or executed by the sheriff.

 

NOTE:  If real property is to be levied upon, the plaintiff must deliver to the sheriff, in addition to the above papers, an original and two copies of a “notice of levy” which complies with CPLR 6216, for each parcel to be levied upon.  This is required to be filed by the sheriff with the county clerk who requires his own filing fees.  Accordingly, the plaintiff must also provide advance payment for this filing; such can be accomplished by separate check or, when possible, by accompanying a deputy to the clerk’s office.  The clerk will be given the original & two copies of the notice, two will be returned stamped by the clerk to the deputy who will retain one and deliver the 2nd to the plaintiff.  Our fee is

 

Civil Arrest: (Requires original plus two copies) Generally speaking, a civil arrest warrant is issued by a court and signed by a judge when a defendant fails to comply with a summons or an order of the court.  The warrant must be directed to the Sheriff of the county in which the warrant will be executed.  The defendant will be brought before the court which issues the warrant.  We require the original warrant and two copies and the appropriate fees.  Contact the Civil Office for fees required.

 

Civil Process:  Legal process not issued by a court or court clerk but which serves a legitimate and required function in the prosecution of defense in an action or proceeding can be delivered to the sheriff for service on a party.  Generally, the cost is $17.00 per party, plus mileage and four copies per party should be delivered to the sheriff.  The filing party is responsible for making sure the documents are correct & proper and providing the sheriff with a letter of instruction which shall include information sufficient to effect valid and timely service.  Once served, an affidavit of service will be provided to the filing party.  Some examples include a summons (with or without a complaint), and the subpoena.  The service of multiple processes usually means that multiple service fees will be charged.

 

Eviction: RPAPL §221, Art.7 and RPL §233 (Eviction notice requires original plus three copies per person to be served.  Eviction Warrant requires one original, and then four copies for each party to be evicted)

 

A. Article 7 of the RPAPL addresses the common landlord-tenant summary proceeding. This proceeding is usually commenced with a notice of petition and petition. These papers must be served on the respondent at least five but no more than twelve days before the court hearing. Accordingly, please deliver such process to the sheriff at least fourteen days before the hearing date. Three copies per party to be served are required. Add mileage; multiple parties at same address, one mileage.

 

B. Other documents to be served in connection with this type pf proceeding such as "3 day" or "30 day" notices and the like, if not issued by a court or its clerk, the fees are $17.00 per document, per party plus mileage. If issued by a court and thus considered a mandate, the fees are $47.00 per document, per party plus mileage. Send three copies per party to be served. If there are any time limitations, you must make us aware of them.

 

C. Eviction/Removal.  Please advise us if there are any concerns for officer safety such as violence, dogs, criminal activity, hazardous materials, etc., or if elderly, very young or infirm persons are involved.

 

1. RPAPL §749 Warrant of Eviction. The sheriff is required to give a written 72-hour notice to the respondent/tenant prior to any physical removal. The sheriff will serve a copy of the warrant along with the notice. The 72-hour period, once commenced, runs uninterrupted: weekends & holidays are counted. Eviction must occur between sunrise & sunset and cannot be executed on a Sunday or other Sabbath. The landlord or his representative should communicate with assigned deputy for scheduling of removal.

 

2. Mobile/manufactured homes. If not in a manufactured home park, the 72-hour rule applies. RPL 233 defines a manufactured home park as “…a contiguous parcel of privately owned land which is used for the accommodation of three or more manufactured homes occupied for year-round living.”  If in a manufactured home park, the sheriff must give the tenant a written 90-day notice. The 90 days can be reduced to 30 days if ordered by the court; such is not automatic. The manufactured home must be removed from the lot in order for the Otsego County Sheriff to return the warrant of eviction as executed. It is the landlord/petitioner's responsibility to ensure that the warrant specifically directs any reduced time; otherwise, the 90-day rule applies.

 

3. Tenant(s) and their personal property must be physically removed from the premises described in the warrant. There is no "lockout." The landlord must provide proper moving & storage, off site, by insured, competent professionals. Removed goods are not placed curbside. This helps protect all parties from loss, theft or damage and reduces the exposure to such claims.

 

4. RPAPL 221 Order for Possession or Writ of Assistance. These are issued in several circumstances, most commonly in conjunction with a foreclosure action. As a practical matter, they are treated and processed similar to the RPAPL 749 warrant: the sheriff will serve a copy of the order & 72 hour notice on the defendant and if a physical removal is necessary, the plaintiff will make the appropriate moving & storage arrangements and consult with the assigned deputy for scheduling. There is no sunrise to sunset provision for execution of the order but the prohibition against service or execution on a Sunday or Sabbath is effective.

 

5. In all cases, the warrant or order must be specifically directed to the Sheriff of Otsego County. We will need one original, and then four copies for each party to be evicted (as listed in the warrant or order). The fees are $107.00 per adult party, plus mileage. If more than one party is at same address, only one mileage is necessary.

  

Income Execution CPLR §5231 (Requires Original and four copies): This instrument, commonly known as a wage garnishment, is used to satisfy a money judgment from the debtor's earnings. There are two stages. In the first stage, the income execution is served by the sheriff on the judgment debtor who must begin making voluntary installment payments to the sheriff. The income execution must be filed with the sheriff where the debtor resides. Therefore, the creditor must have a current correct home address for the judgment debtor. If the debtor fails to make the required voluntary payments, the second stage begins. The income execution will now be served by the sheriff on the debtor's employer who will deduct a percentage from the debtor's earnings and remit it to the sheriff. The income execution must be filed with the sheriff in whose county the employer is located. So, for example, if the judgment debtor lived in Otsego County and worked in Delaware County, the judgment creditor would first have to file with the Otsego County Sheriff and if the debtor defaulted, the Otsego County Sheriff will return the papers to the creditor who must now file them with the Delaware County Sheriff. The fees listed on the Fee & Mileage Chart are what the Otsego County Sheriff charges; you must call other sheriffs for their rates. All fees are paid at the time the papers are filed. If the debtor lives & works in Otsego County, 1st stage fees are paid in advance. The Otsego County Sheriff will bill you for second stage fees and will levy on the wages as soon as those fees are received.. The income execution can be issued (or signed), only by a lawyer, court clerk or county clerk. We cannot serve a P.O. Box.

 

· Whenever more than one Sheriff (or county) is expected to be involved and the judgment is from a City, Town or Village Court, the creditor must first obtain from the original court a transcript of the judgment. This document must then be filed with the County Clerk's Office (the "home" county clerk). After this is done, the income execution can be issued and it must reference that the transcript was in fact filed with the county clerk.

 

· All executions (income or property) can only be issued (signed) by the clerk of the court where the judgment was entered, the county clerk of the home county, or a lawyer licensed to practice in NY State.

 

NOTE FOR JUDGMENT CREDITORS: You must indicate on the income execution forms the full name and address, including zip code, of the judgment debtor & employer. If the debtor is no longer employed by the named employer, the income execution becomes ineffective & is returned to you. The Sheriff does not perform any searches or follow-ups with respect to the debtor's residence, place of employment and so on.

 

NOTE:     All litigants should seek professional competent legal counsel at all times.  The Sheriff is not your lawyer.  The Sheriff can only advise & inform parties as to those procedures and rules related to the Sheriff’s duties.

 

PAYMENT FOR INCOME EXECUTIONS – RULES & PROCEDURES

1.  Do payments have to be made to the sheriff pursuant to an income execution?

 

Yes.  An income execution is a legal & valid money judgment enforcement instrument.  Disobedience or interference may result in subjection to contempt of court proceedings as well as liability for other damages.  Some examples of non-compliance include not paying the proper amount, not paying in a timely fashion and not remitting to the proper officer (that is, the sheriff).

 

  

2.  What if the judgment debtor is already paying on a previous income execution?

 

Generally, one may have multiple income executions issued against him, but only one is active at a time.  When the first is fully paid, then he would begin on number two, and so on.  Income execution number two, three, etc. are still valid but would be considered inactive.  There are exceptions to this rule, so if there are any doubts or questions, please consult with your legal counsel.

 

3.  What if the judgment debtor is paying on a support or maintenance order?

 

A support or maintenance order has priority over all other processes.  However, there are circumstances when a support order and an income execution can be active at the same time.   Some of the rules are explained below, but you should always consult with your legal counsel if you have any questions or doubts.  Generally, the income execution will still be valid but considered inactive.  This is true even if a support order is issued after an income execution has been issued.  If you are paying on a support or maintenance order and you receive an income execution, you have the responsibility of notifying our office and providing copies of the order.  The opposite is also true:  if you are paying on an income execution and thereafter are required to make payments pursuant to a support or maintenance order, you must advise us & provide documentation.  If you don’t do this, the income execution may be served on your employer.

 

4.  Are there maximum or minimum amounts to be paid?

 

There are three equations used to determine how much is to be paid.

 

              No. 1:  10% of the gross earnings.

 

              No. 2:  25% of the disposable earnings.

 

No. 3:  The difference between 25% of the disposable and 30 times the current           

                            federal minimum hourly wage.

 

Whichever is least is the maximum to be paid.  You may pay more voluntarily, but you do not have to.

 

●  You must have weekly disposable earnings that equal or exceed thirty times the current federal minimum hourly wage.  If you do not, no payment is required pursuant to the income execution.  It is possible, based on earnings, to be required to pay one week but perhaps not for another.  If you feel you may be exempt from making a payment because you do not meet this minimum threshold, provide us with documentation and consult your legal counsel.

 

●   If you have a support or maintenance order and the amount required to be paid under that order equals or exceeds 25% of your disposable income, no payment is required to be made on the income execution.  But, if the support amount is less than 25%, then the income execution is to be paid on, but the combined payments cannot exceed 25% of the disposable.  For example, say the disposable is $200 per week, 25% is $50.  If support of $55 is due, the income execution does not receive a payment.  If the support if $40, the income execution payment is $10. Again, you should consult with your legal counsel to resolve any questions or doubts.

 

 

5.  What does “disposable” earnings mean?

 

Disposable is what remains from gross earnings when those deductions required by law are subtracted.  Examples include federal & state taxes, FICA, Medicare, etc.  It normally does not include deductions that are voluntary such as union dues, charity, any direct deposits, sunshine clubs, Christmas or other savings plans or clubs, investment plan deductions and so on.  Disposable can be distinguished from “net” or “take home” pay in that net or take home is what one actually puts in his pocket & would not, obviously, include earnings that were deducted for a charity or savings club.

 

NOTE:  Gross earnings include salary, wages, tips, commissions, bonus, overtime, holiday pay, back pay, premiums, etc.

 

6.  When are payments to be made?

 

When you first receive the income execution you have twenty calendar days to send the first payment.  Failure to do so results in default and the income execution can than be served on your employer.

 

Subsequent payments must be paid every time you get paid:  every week, every other week, etc.  Failure to do so results in default and the income execution can then be served on your employer.  If your pay schedule is for a period more than twenty days apart, please provide documentation to our office.

 

NOTE:  You cannot “bank” or “prepay” installments.  For example, if you get paid every other week and you would remit $50, you cannot send $100 to cover two pay periods.

 

 

7.  Employers:

 

Once you receive an income execution you must implement deductions from the affected employee at once.  But, you are not obligated to alter your payroll schedules.  Also, employers may remit monthly to the sheriff even if the employee is paid weekly or biweekly.   If there is more than one employee subject to an income execution served by the Otsego County Sheriff, you may combine installments on one payment; it is not necessary to send separate checks for each employee.  Please ensure that the employee (judgment debtor) name and Sheriff’s docket (account) number appear on the check or remittance advice or stub sent with the payment.

 

The Sheriff is required to serve the employer in Otsego County, New York.  If an employer’s payroll, human resources or other office is located somewhere else, it is the employer’s responsibility to forward the income execution & associated paperwork to that bureau office or department for processing.  If this is the case or, if an employer contracts with a payroll management firm, please make sure that the appropriate persons or managers receive the correct payment processing information (docket number, our address, etc.).

 

***The amounts to be deducted and remitted to the Sheriff follow the same rules as in section 4 above.***

 

Orders & Income Executions (CPLR 5241), for support or maintenance have priority over all other levies or processes regardless of when they were received by you.

 

If there are two or more income executions delivered to you, whether from our office or other enforcement officers such as a marshal or constable, the general priority rules state that you look to the date and time the instrument was filed with the enforcement officer (not the judgment date):  whichever is older has priority.  There can be exceptions to this rule so if you have any questions or doubts you should consult with your legal counsel.  As stated previously, if  there are two or more income executions served on you against the same employee, you would process the oldest one first and the others would simply wait in line until the first is fully satisfied.

 

For active accounts, we will send you a status request letter automatically if no payment is recorded in any forty day period.  If for any reason you anticipate or experience circumstances that would prevent payment to us within a forty day period you should advise us.

 

Once the balance on an account falls below $100, including interest, fees, etc., we will automatically send you a final balance due letter.  You may call or write us at any time to obtain an updated balance due amount.  Once an income execution is fully satisfied, we will send you a written release.  If another income execution is in line, you will begin deducting on it.

 

If the judgment debtor’s employment is terminated by resignation or dismissal, you should hold the income execution for an additional 90 days.  If the employee returns, the income execution will be effective.  If he does not return within 90 days then you should return the income execution to the Sheriff with a letter of explanation.

 

8.  What forms of payment or acceptable & where should they be sent?

 

Employers may remit their firm checks to us at the address indicated below and as noted on the paperwork sent to them by the Sheriff.  Checks must be made payable to “Otsego County Sheriff’s Office”.

 

Individual judgment debtors must pay by money order or certified funds.  Please make sure you indicate your name and the Sheriff’s six digit docket number on each & every payment.  Money orders or certified funds must be made payable to:  “Otsego County Sheriff’s Office”.

 

●  Payments made by mail must be sent to our address listed below and as noted on the paperwork sent to you.

 

You may pay with cash if you pay in person at our offices at 172 Co Hwy 33W, Cooperstown, NY.  We are unable to make change, although such denominations may be used to make payments.

 

 

    Individuals & Employers must send payments to:

 

                     Otsego County Sheriff’s Office

                     Civil Process Division

                     172 Co Hwy 33W

                     Cooperstown, NY  13326

 

9.  Changes or questions relative to an account?

 

If you change your address you must tell us in writing by sending us a letter with your name, new address and docket number to 172 Co Hwy 33W, Cooperstown, NY  13326.  You can bring this letter to us at the same address if you wish.

 

If there is any legal action taken relative to an account such as the judgment being vacated, appealed, modified or a bankruptcy is filed, you must advise us in writing at our Co Hwy 33W address.

 

If you wish to satisfy or fully pay off an account, please call us at 607-547-4271 for a close-out figure.  Or, send a request letter to the Co Hwy 33W address.  You must provide your name and docket number.  You must also provide us with a date certain so that we can properly calculate & project the full amount due.  If for any reason you are unable to pay on that date, call or write us with a new date for a new figure.

 

If for any reason an overpayment occurs, we will remit any overage to the judgment debtor at the residence address supplied to us.

 

10.  Our remittance schedule.

 

Note:  Pertains to all types of processes & instruments, not just income executions.

 

By law we are required to remit monies collected on an income execution at least once every ninety days.  As a convenience to both creditors and debtors (who may be due a refund), we normally disburse approximately every thirty days, on or about the 30th of the month.  Payments collected, for example, in June will be remitted on or about the 30th of July; payments received in July will be remitted on or about the 30th of August; and so on.  This is our general rule but many factors can cause adjustment and the particulars of an individual case or payment can affect when a payment is disbursed.

 

When you receive one of our checks, please cash it immediately.  There is a sixty day “life” of our checks, so if it becomes stale and a re-issuance is necessary, the payee will have to deliver to us our stale check and pay a re-issuance fee of $25.00.  If one of our checks is lost, there will be a $25.00 re-issuance fee plus whatever fee our bank charges us for stopping the lost check.

 

 

11.  What fees or charges are added onto a money judgment?

 

NOTE:  Pertains to all types of executions, not just income executions.

 

The court will enter a judgment which will include the base sum awarded plus, if approved by the court, any court charges or interest.  This figure is the principal judgment amount.  Added to this is post-judgment interest, which is generally at a 9% APR (there are exceptions to this rule).  Interest continues to accrue until the judgment is fully satisfied.  If it becomes necessary for the judgment creditor to employ enforcement actions, because the judgment debtor did not pay the creditor fully & promptly, expenses or costs the creditor pays to the Sheriff for filing fees for the processing of an execution become the liability of the judgment debtor.  In other words, the judgment creditor is required to prepay the Sheriff certain fees to execute.  Those fees are added on to the judgment sum.  For example, if a judgment creditor files an income execution with the Sheriff, the Sheriff will charge him $40.  That $40 will be added onto the income execution amount and charged to the judgment debtor.

 

Additionally, state law requires the Sheriff to charge a fee known as “poundage”.  This is a percentage fee calculated on the sum collected by the Sheriff and is added onto the execution amount and charged to the judgment debtor.  The percentage rate is 5% of the first $250,000 and 3% on amounts above that.

 

12.  Satisfactions & Settlements.

 

Once the judgment & associated interest, fees and poundage are fully paid, the Sheriff will so note his files & close the account.  We will send a copy of the execution endorsed as “satisfied” to the clerk of the court.  We will also send a copy of the endorsed execution along with an explanatory letter to the judgment creditor who filed the papers with us.  The judgment creditor, in all cases, is responsible for filing a separate legal document with the clerk of the court and County Clerk if appropriate, the “satisfaction-piece”.  This is the “official” notification & document establishing the satisfaction, not to be confused with the Sheriff’s execution return.  This must be done within twenty days of the judgment creditor receiving full satisfaction.  Additionally, the judgment creditor must mail a copy of the satisfaction-piece to the judgment debtor within ten days after its filing with the clerk.  This procedure also applies where a “partial satisfaction” occurs.  See CPLR 5020 & 5021.  The Sheriff does not prepare or file the satisfaction-piece.

 

A judgment debtor may obtain from the Sheriff a certified copy of the Sheriff’s return, upon written request.

 

●  The parties may settle at any time upon such conditions or circumstances they agree to.  However, if the Sheriff has levied, the Sheriff is due poundage of 5% of the settlement amount.  The parties must take this amount into consideration when they discuss any settlement.

 

Order of Seizure: An Order of Seizure is an order, signed by a judge, directing the Office of Sheriff to seize a specified chattel.  The order is delivered to the Sheriff along with the papers on which it was granted, generally the plaintiff’s affidavit and an undertaking.  After seizure, the property is held in the custody of the Sheriff for ten days.  After ten days the chattel is turned over to the plaintiff unless the Sheriff receives further direction from the court.  Contact the Civil Office for fees required as they differ according to the property seized.

 

Order to show cause: (Requires Original and two copies) An Order to Show Cause is issued by a judge and directs the defendant to appear in court to show cause as to why relief sought by the plaintiff should not be granted.  The Sheriff’s Office requires the original and two copies along with appropriate fees and a viable service address. 

 

Property execution: CPLR §52 (Requires Original and five copies, if multiple debtors, original plus three copies per party). The property execution is an instrument used by the sheriff to seize (or "levy" upon), assets of the judgment debtor other than earnings, salary or wages. The type of property targeted will determine the type of execution to be used. For example, if tangible personal property like a motor vehicle, boat, machinery, etc. is to be levied upon, the "straight" or "demand" execution may be used. The sheriff will seize the property and liquidate it at a public auction, the proceeds paying the expenses associated with the sale (towing, storage, etc,) and the net proceeds applied to the satisfaction of the judgment. A commonly used execution is the "third party" execution or execution "with notice to garnishee." These are used where the asset is not tangible, like a bank account or rent payment. The sheriff will serve a copy of the execution on the bank or other appropriate party as directed and that party, the "garnishee," will send the money to the sheriff for processing. If real estate is the target for enforcement, a real property execution may be used. There are several forms available by several legal forms publishers and some executions can be used for different assets. For example, the personal property demand execution might also be used for real estate. Some "third party" executions are limited for use only with those types of levies. Some court clerks supply forms, some do not. In all cases, the judgment creditor is responsible for ensuring the forms are accurate and complete. Property executions can be issued (signed), only by a lawyer, court clerk or county clerk.

 

A. Original plus five copies. If multiple debtors, include an original plus three copies per party. Add mileage, If enforcement outside the home county is anticipated and a City, Town or Village Court judgment is involved, make sure you file the judgment transcript with the home county clerk first.

 

B. When the third party execution is used for a natural person judgment debtor you must advise us in writing whether or not the "notice to judgment debtor" provision of CPLR 5232(c) has been complied with (this concerns certain assets exempt from levy). If this form has not been sent within the previous year, the sheriff must do this. We must serve a copy of the execution and a notice for an additional $62.00 per party.

 

C. For all tangible property, the judgment creditor must provide documentation establishing the debtor's interest in the targeted property prior to any levy. If liens are involved, the name & address of the lienor should be provided to us as well as the status or outstanding balance due on any lien. For example, if a motor vehicle or boat is targeted, the NYS Dept. of Motor Vehicles can provide the title & lien information when you fill out and send  them form no. MV-15. Advances for anticipated expenses will be required; for example, an uncomplicated motor vehicle levy with a standard tow might be $500, where a boat with a trailer or a dump truck $1000 or more. Please call for estimates. Advances will also be necessary for processing real property.  These executions are used in conjunction with a court order or judgment that may involve both money and the possession of and delivery of personal or real property. We will need an original or clerk or attorney certified copy of the order, plus an original and five copies of the execution. Advances may be necessary. Add mileage.

 

NOTE: All litigants are strongly urged to seek competent professional legal counsel at all times. The Sheriff is not a lawyer and can only advise & inform parties as to what the Sheriff's rules & procedures, fees, etc. may be.

 

 1. Bank account & similar levies pursuant to

     CPLR 5232(a)

 

The judgment creditor must indicate on the execution forms the full names and addresses, including zip codes, for the judgment debtor and the garnishee (bank, credit union, corporation, etc.). The Sheriff does not perform asset searches. The judgment creditor must identify the garnishee.

 

The Sheriff does not physically seize cash: the garnishee has ninety days to transfer the debtor's interest in property or assets in the custody of the garnishee or in debts owed by the garnishee to the debtor. If for any reason the garnishee cannot or will not effect a transfer, the judgment creditor is responsible for bringing the appropriate court action in the proper time and court. The Sheriff does not have any authority to compel a garnishee to do anything. If the garnishee advises the Sheriff that it has no such property, assets or debts of the debtor, the Sheriff will close and return the execution with explanation.

 

Generally, a bank or similar entity will not comply with an execution if a party other than the judgment debtor has an interest in the targeted asset, for example, a joint bank account where a non-debtor is a joint owner. Usually the judgment creditor must apply for judicial determination of these issues.

 

2Levies for rent, mortgage payments & similar

assets.

 

Again, the judgment creditor must provide full names and addresses, including zip codes, of any garnishee to be served with the execution. Where installment, regular or irregular payments are targeted or expected by the judgment creditor, be advised that the Sheriff does not physically travel to the garnishee and make such collections. It is the garnishee's responsibility to transfer any such asset or debt to the Sheriff as they become due. Also, the ninety day time limitation referenced above is effective, so if the judgment is not expected to be fully satisfied, including interest, fees and poundage, within that time period, the judgment creditor must take the appropriate action in a timely manner to protect his interests & have that period extended.

 

 Any disputes as to ownership interests, including joint interests, cannot be resolved by the Sheriff & usually require the creditor to seek judicial determination.

 

NOTE: If you do not hear from us within 30 days of your filing the papers, you should call us at 607-547-4271 to speak with the Civil Clerk.

 

 

 

3.  Levies on "property capable of delivery" or tangible personal property.

 Any personal property not exempt from application to the satisfaction of a money judgment can be levied upon by the Sheriff. The judgment creditor must provide documentation establishing the debtor's interest in the targeted property and must provide information sufficient for the Sheriff to properly identify it. Again, any disputes as to ownership interests will have to be resolved by judicial determination, before the Sheriff acts.

 

The Sheriff must actually physically seize the property. Accordingly, advances from the judgment creditor (in addition to any filing fees), will be necessary to cover anticipated expenses. For example, if a standard motor vehicle is to be levied upon, the Sheriff will need an advance for towing, storage and fees associated with a Sheriff's sale (usually $500). The type and quantity of property to be seized determines any advances needed.

 

The Sheriff intends to perform any such levies in a professional, timely & safe manner, so only those service providers or vendors who are competent, reliable & insured should be used. Further, the Sheriff as the court's neutral enforcement officer, requires all service providers to be neutral; that is, not associated, affiliated or related (either personally or by virtue of a business or other relationship), to any of the parties. The Sheriff is not obligated to use any particular service provider or vendor.

 

4.  Real property.

 

The subject realty, or a portion of it, must be within Otsego County. The judgment must be a lien on such property. Ten years must not have elapsed since the entry of the judgment.

 

If the judgment was recovered for all or a portion of a mortgage debt, for the targeted realty, no execution sale can occur. If the judgment debtor is an individual (natural person), and the targeted realty is owned & occupied by him as a principal residence, court permission & direction is required before any execution sale can occur.

 

There are exceptions and variations to most of the foregoing and professional review, & management by a lawyer is strongly advised. There will be costs associated with the processing of a real property execution sale in addition to the filing fees. Generally, the advance required is $500.00 per parcel, but such is dependent on publishing costs.

 

NOTE: Please see the previous sections regarding deeds, associated forms, format and acknowledgment notes.

 

Subpoena: (Requires two copies of the subpoena) A subpoena is issued by a clerk of the court to a witness directing their appearance in court and often is accompanied by a witness fee.  The Sheriff’s Office requires two copies of the subpoena with appropriate fees and a viable service address.

 

Summons: (Requires two copies of each summons) A summons is issued to direct a defendant to answer a complaint either in person or in writing to the court.  The Sheriff’s Office requires two copies of each summons along with appropriate fees and a viable service address.  Also include a letter is instruction directing the type of service to be made.

 

SHERIFF'S SALES

 

1. What is a Sheriff's Sale?

The Sheriff seizes or levies upon property for the purpose of satisfying a money judgment. This is done by liquidating the asset (that is, converting the asset into cash). This is accomplished by a "Sheriff's Sale" which is a public auction. The highest bidder pays his bid price to the Sheriff and takes custody & ownership* of the auctioned property. The Sheriff pays any service providers or vendors who assisted in the seizure (like towing & storage), from the sale proceeds, deducts the various fees & expenses associated with the levy & sale from the proceeds and applies the balance to the judgment. Note that these types of sales are not like the public auctions held by police departments where the property sold is usually property recovered from a crime, or simply lost but unclaimed by the true owner. The proceeds from those sales are turned over to the municipality.

* See #7 below.

 

 

2. When are Sheriff's Sales Conducted?

Another difference between a Sheriff's sale and police auction is that police auctions are usually held approximately once a year and Sheriff's sales are held throughout the year, at no set schedule. When the Sheriff conducts a sale depends upon when he seizes property; it is not the case where the Sheriff would seize property in connection with several or many cases and hold the property for one big sale. Sales are held "as needed."

 

 Where are Sheriff's Sales Conducted?

All real estate execution sales are conducted at our Public Safety Office located at 172 Co Hwy 33W, Cooperstown, NY.

 

Personal property sales (cars, equipment, machinery, etc.), are conducted at the site where the property is actually located. So, for example, if we levy on a pickup truck and it is towed & stored at our impound area at 172 Co Hwy 33W, Cooperstown, NY, and the sale will be held there.

 

 

4.  Who can bid at a Sheriff's Sale?

Sheriff's sales are public auctions, so anyone can bid. The only exception is that members of the Otsego County Sheriff's Office may not bid. A person acting as agent for a company or corporation may bid on behalf of the company or corporation he represents. There are no sealed bids or phone bids. A party may bid on behalf of/as agent for, a party not present as long as the agent is present at the sale and the bidder has provided his authority to the Sheriff for such arrangement, in writing, prior to the sale.

Additionally, while anyone may attend and participate in the bidding, only those bidders who have registered to bid will be allowed to do so. This simply involves the bidder signing & printing his name, address & phone number on a ledger sheet provided at the sale.

 

  

5. What is the sale format?

A standard auction format is used and there is usually no reserve, opening bid, minimum bid, or buyer’s premium. Bidding must be in dollar increments. A judgment creditor or execution creditor cannot use his judgment as credit for bidding unless a court order granted & entered prior to the sale is delivered to the Sheriff prior to the sale.

 

 

6. What are the Terms of Sale?

All property is sold "as is, where is." No guarantees or warrantees are made, expressed or implied for anything sold at any sale, with respect to condition, value, use, operation, safety, marketability, re-sale, sufficiency or accuracy of description, authenticity, or any other matter not consistent with the obligations or duties of the Sheriff.

All sales are for cash only, U.S. currency. A minimum of 10% is due and payable at the conclusion of bidding. Cash is always required for a down payment. If the bid is unusually high, the balance might be paid with a bank cashier's check, certified funds or money order. Any other potential exceptions must be cleared prior to the sale.

If the full bid price is paid at the time of sale, the bidder should discuss with the deputy the release procedure to be able to take immediate possession of the property.

If a down payment is made, the remaining balance is due by 4:00 P.M. of that same day. Alternate arrangements must be pre-approved. The bidder cannot take possession of the property until he receives a written release from the deputy and the release will not be issued until the bid price is fully paid.

The expenses of the levy & sale will be deducted from the sale proceeds, if any. Where storage has accrued, it will be paid up to and including the day of sale. Thereafter, the purchaser is responsible for any charges. The purchaser is also responsible for making arrangements for the removal, transportation, security, safety, etc. of the purchased property.

When real property is sold, the purchaser must pay to the Sheriff a $22.00 deed fee at the time the deed & associated documents are delivered. The Sheriff does not charge or collect any taxes, fees or charges that may be due or assessed with respect to the sale, transfer or recordation.

Any other terms or requirements as may be expressed or implied by any rule or law are operational as long as such is not inconsistent with the Sheriff's duties and responsibilities as stated here or by law, at the time of sale, or other time. The preceding policies and procedures are subject to modification based upon innumerable variations and factors related to the property, court directions, etc.

 

 

7. What exactly is the high bidder purchasing?

The purchaser at a sheriff's sale is acquiring the interest of the judgment debtor in the property levied upon. If, for example, the interest of the judgment debtor in a motor vehicle is subject to a lien, then that is what the bidder is buying. For real property, if the debtor's interest is governed by a joint tenancy, for example, or other deed restriction, or is subject to a superior lien or encumbrance, then that is what the bidder is purchasing. The purchaser is acquiring the judgment debtor's "right, title & interest" in or to the property, whatever that may be. The Sheriff does not research such things nor make opinions or assertions relative to such matters.

 

 

 

8. What Documents will the purchaser receive from the Sheriff?

When personal property is sold, the successful bidder will receive a receipt for the payment of his bid; a release which will be directed to the agency, person or party having possession of the property, which authorizes the release of the property to the purchaser; and a certificate of sale, which transfers the judgment debtor's interest in and to the property, to the purchaser. Accompanying the certificate of sale will be a copy of the execution, which is the legal instrument authorizing & directing the levy and sale.

When real property is sold, the purchaser will receive a receipt for the payment of the bid price, a Sheriff's Deed and the several documents attesting to procedure.

 

 

9. How does one find out if & when a sale is scheduled?

A printed notice of sale is usually posted in three public places in the County of Otsego, typically at our office at 172 Co Hwy 33W, Cooperstown, NY, the County Clerk's Office at 197 Main Street, Cooperstown, NY, and in the Otsego County Court Building.

For personal property sales, the law requires a notice of sale to be posted at three public places in the town or city where the actual auction takes place, at least six days before the sale. Such postings typically are done at the local town hall and other government buildings.

For real property sales, the law requires a notice of sale to be posted at three public places in the town or city where the parcel is situated, at least 56 days before the sale. Again, such postings are typically done at the local town hall and other government buildings. Additionally, the real property notice of sale will be published in a local newspaper on four different occasions.

The Sheriff does not maintain a mailing list. We will however post notices on this website.