We Defend You Against

TD Bank, National Association

We defend against collection lawsuits, wage garnishments, and bank seizures. Whether you're facing credit card debt, medical debt, tuition bills, or other consumer debt, we can help. We focus on the area of judgment-enforcement defense involving wage garnishments, bank seizures, or lawsuits (summons and complaints.

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Judgment Debtors Lack a Private Right of Action for EIPA Violations by Banks but May Seek Relief Through Special Proceedings

Plaintiffs, judgment debtors, filed class actions against banks alleging noncompliance with the Exempt Income Protection Act (EIPA), which mandates banks forward notices and forms to debtors when restraining accounts. The New York Court of Appeals held that the EIPA does not imply a private right to bring plenary actions for damages or injunctive relief. However, judgment debtors can pursue remedies for EIPA violations through CPLR Article 52 special proceedings, the exclusive enforcement mechanism under the statute.

Key Legal Principles:

1. No Implied Private Right of Action Under EIPA: The Court declined to imply a right for judgment debtors to sue banks directly, as doing so would be inconsistent with the statutory scheme and legislative intent.
2. Special Proceedings as Exclusive Remedy: Relief for EIPA violations, including injunctions and damages, must be sought through CPLR Article 52 mechanisms, such as proceedings under CPLR 5239 or 5240.
3. Legislative Design Limits Bank Liability: The EIPA imposes procedural duties on banks but does not create liability for noncompliance, focusing instead on facilitating expedited dispute resolution.

Conclusion:
Judgment debtors cannot sue banks in plenary actions for EIPA violations but may secure relief through the comprehensive remedies provided in CPLR Article 52 special proceedings.

Citation: Cruz v TD Bank, N.A., 22 NY3d 61 (2013).

Unauthorized Check Cashing: Bank's Motion to Dismiss Denied for Claims Related to Inbound Checks but Granted for Outbound Checks

A former employee fraudulently cashed checks made out to and issued by his employer by endorsing them with his own signature. After being charged $48 NSF fees twice for the same rejected payment of $19.49, the plaintiffs sued their bank. The court denied the bank's motion to dismiss claims under UCC § 3-419 and conversion for inbound checks (checks made out to plaintiffs), but granted dismissal of claims related to outbound checks (checks written by plaintiffs) and negligence claims.

Key Legal Principles:

1. A bank's acceptance of checks with endorsements from individuals other than the named payee is generally considered commercially unreasonable under New York law.
2. Claims under UCC § 3-419 do not require specific allegations of forgery; improper negotiation of checks is sufficient.
3. Common law conversion claims can coexist with UCC § 3-419 claims when they do not contradict the UCC's provisions.

Conclusion: Banks may be liable for conversion when accepting improperly endorsed checks from unauthorized individuals, but drawers of checks generally cannot bring direct actions against depositary banks for collecting improperly endorsed checks.

Citation: Lesser v. TD Bank, N.A., 18 Civ. 9922 (PAE) (GWG), 2020 U.S. Dist. LEXIS 94041 (S.D.N.Y. May 29, 2020).

TD Bank Denied Foreclosure: Failure to Prove RPAPL 1304 Notice Mailing Requirements

In a residential mortgage foreclosure action, the Appellate Division reversed summary judgment for TD Bank because it failed to prove compliance with New York's RPAPL 1304 pre-foreclosure notice requirements. Although TD Bank submitted a copy of the required 90-day notice, it failed to provide evidence of actual mailing or standard office mailing procedures sworn to by someone with personal knowledge.

Key Legal Principles:

1. Proper service of RPAPL 1304 notice is a condition precedent to commencing a residential foreclosure action.
2. Proof of mailing requires either evidence of actual mailing or sworn testimony about standard office procedures from someone with personal knowledge.
3. A borrower's bare denial of receipt, without more, is insufficient to establish entitlement to summary judgment dismissing the complaint.

Conclusion: Banks must strictly comply with RPAPL 1304's specific mailing requirements and maintain proper documentation to succeed in residential foreclosure actions.

Citation: TD Bank, N.A. v Roberts, 186 A.D.3d 1559 (2d Dep't 2020).