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S04530 Summary:

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S04530 Floor Votes:

S04530 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         4530--B
            Cal. No. 915
 
                               2011-2012 Regular Sessions
 
                    IN SENATE
 
                                     April 11, 2011
                                       ___________
 
        Introduced  by  Sens.  SALAND,  FARLEY, AVELLA -- read twice and ordered
          printed, and when printed to be committed to the Committee on  Judici-
          ary  --  reported  favorably from said committee, ordered to first and
          second report,  ordered  to  a  third  reading,  amended  and  ordered

          reprinted, retaining its place in the order of third reading -- passed
          by  Senate and delivered to the Assembly, recalled, vote reconsidered,
          restored to third reading, amended and  ordered  reprinted,  retaining
          its place in the order of third reading
 
        AN  ACT  to amend the civil practice law and rules and the general busi-
          ness law, in relation to prohibited debt collection practices
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1.  Subparagraph (i) of paragraph 3 of subdivision (a) of rule
     2  5224  of  the civil practice law and rules, as amended by chapter 452 of
     3  the laws of 2006, the opening paragraph as amended by chapter 552 of the
     4  laws of 2006, is amended to read as follows:
     5    (i) information subpoenas, served on an  individual  or  entity  other

     6  than  the  judgment debtor, may be served on an individual, corporation,
     7  partnership or sole proprietorship only if the judgment creditor or  the
     8  judgment  creditor's  attorney  has  a  reasonable belief that the party
     9  receiving the subpoena has in their  possession  information  about  the
    10  debtor  that will assist the creditor in collecting his or her judgment.
    11  Any information subpoena served  pursuant  to  this  subparagraph  shall
    12  contain  a  certification  signed by the judgment creditor or his or her
    13  attorney stating the following: I HEREBY CERTIFY THAT  THIS  INFORMATION
    14  SUBPOENA COMPLIES WITH RULE 5224 OF THE CIVIL PRACTICE LAW AND RULES AND
    15  SECTION  601 OF THE GENERAL BUSINESS LAW THAT I HAVE A REASONABLE BELIEF
    16  THAT THE PARTY RECEIVING THIS SUBPOENA HAS IN THEIR POSSESSION  INFORMA-
    17  TION  ABOUT  THE  DEBTOR THAT WILL ASSIST THE CREDITOR IN COLLECTING THE

    18  JUDGMENT. By signing the certification, the judgment creditor or  attor-
    19  ney  certifies that, to the best of that person's knowledge, information
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10417-07-1
        S. 4530--B                          2
 
     1  and belief, formed after an inquiry reasonable under the  circumstances,
     2  that the individual or entity receiving the subpoena has relevant infor-
     3  mation about the debtor.
     4    §  2.    Subdivision  9 of section 601 of the general business law, as
     5  added by chapter 753 of the laws of 1973, is amended and a new  subdivi-
     6  sion 10 is added to read as follows:
     7    9. Use a communication which simulates in any manner legal or judicial

     8  process  or  which  gives  the appearance of being authorized, issued or
     9  approved by a government, governmental agency, or attorney at  law  when
    10  it is not[.]; or
    11    10. If such principal creditor or agent sends more than fifty informa-
    12  tion  subpoenas  per month, fail to keep complete records concerning all
    13  information subpoenas sent by such principal creditor or  agent.    Such
    14  records  shall  be  maintained  for  five years. Contemporaneous records
    15  shall be  kept that set forth with  specificity  the  grounds  for  such
    16  principal creditor or agent's reasonable belief, which must be certified
    17  and  accompany  each  information  subpoena  pursuant  to rule fifty-two
    18  hundred twenty-four of the civil practice law and rules, that the  party

    19  receiving  the  subpoena  has  in  its  possession information about the
    20  debtor that will assist the creditor in collecting his or her judgement.
    21  In addition to any other penalty that my be imposed, failure to maintain
    22  records in accordance with this subdivision shall subject such principal
    23  creditor or agent to a civil penalty of not more than fifty dollars  per
    24  subpoena,  up to a maximum of five thousand dollars per violation, in an
    25  action brought by the attorney general.
    26    § 3. Section 602 of the general business law is amended  by  adding  a
    27  new subdivision 3 to read as follows:
    28    3. Any aggrieved person or entity served with more than fifty informa-
    29  tion  subpoenas  per  month  by a principal creditor or his or her agent

    30  shall also have a cause of action to challenge compliance with  subdivi-
    31  sion  ten  of section six hundred one of this article and/or the certif-
    32  ication requirements of rule fifty-two hundred twenty-four of the  civil
    33  practice  law and rules. In such action, a successful plaintiff shall be
    34  awarded ten dollars for  each  information  subpoena  served  upon  such
    35  plaintiff  where  it  is  shown that the required certification for such
    36  information subpoena was not made pursuant  to  rule  fifty-two  hundred
    37  twenty-four  of  the  civil  practice  law  and rules, that the required
    38  record for such information subpoena  was  not  maintained  pursuant  to
    39  subdivision  ten of section six hundred one of this article, or that the

    40  specific grounds for the certification required to accompany such infor-
    41  mation subpoena pursuant to rule fifty-two hundred  twenty-four  of  the
    42  civil practice law and rules were not reasonable. A successful plaintiff
    43  may also be awarded court costs and attorney fees.
    44    §  4.  This  act shall take effect on the thirtieth day after it shall
    45  have become a law and shall apply to information subpoenas served on  or
    46  after such date.