holding that New York’s “Notice to Judgment Debtors” satisfied due process by specifying that a procedure existed to adjudicate exemption claims and advising debtors to contact an attorney, even though the notice did not inform judgment debtors of the specific steps to be taken to test exemption claims
How later courts described this case
- holding that New York’s “Notice to Judgment Debtors” satisfied due process by specifying that a procedure existed to adjudicate exemption claims and advising debtors to contact an attorney, even though the notice did not inform judgment debtors of the specific steps to be taken to test exemption claims
- holding that notice of existence of procedures for judgment debtors to adjudicate exemption claims by reference to statutory sections of state civil practice rules coupled with advice to seek counsel satisfied the due process standards set forth in Memphis Light
- finding due process satisfied when judgment debtors are notified about garnishment and available exemptions after property is seized, and when they have opportunity to challenge seizure promptly
- “Providing post-seizure notice of the fact of seizure is an elemental requirement of due process ... ”
Written by the judges who cited it.
The opinion
KEARSE, Circuit Judge,
dissenting:
I respectfully dissent from the majority’s holding that the statutorily required “Notice to Judgment Debtor” (“Notice”) sent to plaintiff Cynthia McCahey satisfies due process. While the current form of the notice used in New York for notifying judgment debtors that their property has been seized and that they may contest the seizure of exempt property is an improvement over the postjudgment remedies held constitutionally deficient in Deary v. Guardian Loan Co., 534 F.Supp. 1178 (S.D.N.Y.1982), I do not believe the New York legislature has cured all of the constitutional infirmities of the prior notice.
As the Supreme Court has stated, “ ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 13 , 98 S.Ct. 1554, 1562 , 56 L.Ed.2d 30 (1978) (quoting Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 , 70 S.Ct. 652, 657 , 94 L.Ed. 865 (1950)). In Memphis Light, the Court held that a utility's notification of the termination of utility service did not meet this standard because it failed to advise the customer of the availability of a procedure for protesting the proposed termination. The Court held that utility customers, who were “of various levels of education, experience, and resources,” were constitutionally entitled to “be informed clearly of the availability of an opportunity to present their complaint.” Id., 436 U.S. at 15 n. 15, 98 S.Ct. at 1563 n. 15. The Court specified the minimum notice required by due process as follows: “In essence, recipients of a cutoff notice should be told where, during which hours of the day, and before whom disputed bills appropriately may be considered.” Id.
I agree with the Deary court that the principles stated in Memphis Light are equally applicable in determining the notice to which a New York judgment debtor is constitutionally entitled. Here, as in Memphis Light, the affected individuals are of various levels of education, experience and resources, and should be given notice of both the exemptions to which they may be *559 entitled and the procedures for asserting those exemptions.
The New York legislature, in amending the prior statutory scheme in light of Deary , has. included in the form of notice only the section nu.mbers of the statutory provisions that govern objections to the seizure of exempt property and has included no disclosure of what those procedures are. In my view, the information thereby given the judgment debtor does not meet the minimum constitutional requirements. I do not find, as does the majority, that the present Notice is substantially the equivalent of a revised form of notice developed by the Memphis Light utility which the Supreme Court thought “may be entirely adequate.” Memphis Light, 436 U.S. at 15 n. 16, 98 S.Ct. at 1563 n. 16. The new notice in Memphis Light actually described “methods of contact” and stated that trained credit counselors were available “to clear up any questions, discuss disputed bills or to make any needed adjustments.” Id. Thus, the new notice apparently satisfied the Court’s requirement that customers be told before whom disputed bills appropriately might be resolved. By contrast, the New York Notice does not clearly tell judgment debtors the agency from which they are most likely to get relief— i.e., the state courts. I think it an unreasonable assumption that all judgment debtors, of whatever level of education and experience, will understand the mere reference to two sections of the New York Civil Practice Law and Rules as an instruction that they may go to court and obtain a prompt hearing on their claim.
Nor do I view it as sufficient that the Notice indicates that judgment debtors may talk to the person sending the notice or to an attorney of their own. While in some cases contacting the attorney who sent the notice may well be the easiest practical solution, and while we have no desire to multiply proceedings unnecessarily, I believe that a debtor who sees that as the first course of action recommended by the Notice may well be materially misled. The facts of this very case show that the judgment creditor’s attorney simply may disregard advice even from disinterested third parties such as bank officials, and may refuse to wait for promised evidence from the debtor that the property in question is in fact exempt. And although the majority states that McCahey did not rely on this part of the Notice but contacted Legal Aid as well, the record indicates that she apparently did not contact Legal Aid until some 2% months after she received the Notice to Judgment Debtor, and then only after her bank had paid the Suffolk County Sheriff the entire balance in her account. Thus, McCahey may well have been misled by the Notice into believing that the first course of action listed — contacting the person who sent it — identified the person before whom the disputed claim of exemption might appropriately be resolved.
In sum, I would hold that the requirements of due process, as set out in Memphis Light, require that, at a minimum, the Notice to Judgment Debtor should tell judgment debtors to what court they should go to seek relief from the seizure, and that the present statement that the debtor may contact the person who sent the notice should be modified to make clear that this is a practical route, not a sure one.