Lucia Garcia, guardian of Tomas Garcia, an Incapacitated Person, moves for an Order vacating the hold on the Northfork Bank (Restraint Goldman Index No. 33165/06) entered September 14, 2006; to vacate the Information Subpoena and Restraining Notice served in the name of the Incapacitated Person upon North Fork Bank on September 11, 2006 by Jeffrey M. Parrella, Esq. of Goldman & Warshaw, P.C.; (now Goldman, Warshaw & Parrella, P.C.) and to vacate the underlying default judgment of Civil Court of the City of New York, Index No. 33165/06.

After being appointed personal and property management of Tomas Garcia, pursuant to Article 81 of the Mental Hygiene Law, Lucia Garcia, on July 13, 1999 paid off a credit card issued by Fleet Bank in the name of Tomas Garcia and closed out the account.

Lucia Garcia advised Fleet Bank in writing on July 13, 1999 that she had been appointed Guardian for Tomas Garcia and provided a copy of her commission issued by the Clerk of Queens County. On September 20, 1999 Ms. Garcia spoke to a Fleet Bank (hereafter "Fleet") customer service representative named David Wisher and he confirmed that the account had been closed. Mr. Wisher confirmed this again in writing in a letter dated the same date. This information was also provided to the Customer Service Department and acknowledged and confirmed again on October 2, 1999 in a letter from Stacey Chapman from the Customer Service Department.

Nevertheless, the account was re-opened by Fleet Bank without the guardian's consent and someone other than the guardian incurred debt of $3,366.16 (in cash advances) which appeared on a bill from Fleet Bank dated October 6, 1999. Said bill consisted of three successive cash advances; two in the amount of $2,000.00 each and a third in the amount of $200.00. The bill also had a $29.00 over limit fee and a finance charge of $9.16. The Guardian immediately contacted Fleet and advised the bank of her prior correspondence and telephone [*2]conversations.

On October 16, 1999, Ms. Garcia wrote by facsimile to Andrea Carter, at (719) 264-2009 regarding the problem.^[FN1]

At Ms. Carter's direction, Ms. Garcia wrote to Joseph Sanders, Chief Credit Officer again, directing that all the accounts be closed and that any correspondence be sent to her, not her ward, Tomas Garcia.^[FN2] [*3]

Despite all Ms. Garcia's efforts, Fleet Consumer Credit reopened the account for Thomas Garcia and extended credit by a letter dated November 29, 1999, signed by Edward E. Bachman, Senior Vice President in charge of Fleet Consumer Credit.

In a letter dated February 11, 2000, Peter F. Vallone, Jr. Esq., the Court Examiner appointed by the Appellate Division, advised Fleet Bank as follows:

"Please be advised that I am a Court Examiner assigned to oversee the above matter. Lucia Garcia is the Guardian for Tomas Garcia, who has been adjudicated an Incapacitated Person by Supreme Court of New York. Therefore, Mr. Garcia was incapable of entering into a contract with your company and his Guardian is not responsible to repay any bills he has incurred. Please ensure that no further credit is extended to Mr. Garcia.

Please direct this letter to all appropriate parties, including your Legal Department". signed Peter Vallone, Jr., Esq.

In response to Ms. Garcia's dispute over the credit card, in a letter from Kamla Harinnandan, Fleet Bank on March 2, 2000, retaliated against Ms. Garcia by informing her that the bank would "terminate its account relationship" and closed the guardianship account.

Despite all the information provided by Ms. Garcia and the Court Examiner, Fleet Bank took no efforts to resolve the matter allowing interest and penalties to accrue and sent the account to Phillips and Cohen Associates, LTD. for collection. In a letter dated June 7, 2000 from Adam S. Cohen, Esq. Executive Vice President, Tomas Garcia was threatened with legal action against him.

Lucia Garcia immediately notified Mr. Cohen in writing of Tomas Garcia's status as a ward of the Court. Mr. Vallone also wrote advising Mr. Cohen of Mr. Garcia's status and advised Mr. Cohen that no payments could be made unless the Court determined the debt to be valid and authorized the payments. There was no attempt by Fleet Bank or Phillips & Cohen to obtain or verify the information provided or to resolve the matter with Ms. Garcia, Mr. Vallone, or the Court.

On November 11, 2002, a form letter from Asset Acceptance LLC (hereinafter "Asset") was sent offering Thomas Garcia an opportunity to settle the account (which now stood at [*4]$6,116.53) for the sum of $4,587.40. Once again, Ms. Garcia dutifully informed Sharon Turrell, the debt collector from "Asset" of the underlying facts and of her attempts to resolve the matter. On January 4, 2006 Joseph Zande, a staff attorney and debt collector, from the Legal Department of "Asset" sent a letter to Tomas Garcia, demanding payment of the now $8,679.97 balance on the account.

On January 31, 2006 Nghia Nguyen, Esq., an attorney from the firm of Goldman & Warshaw, P.C., (now Goldman, Warshaw & Parrella, P.C.) wrote to Tomas Garcia advising him of their intention to continue to pursue the debt. On February 25, 2006 and again on March 9th and March 26th, Ms. Garcia advised the attorneys at Goldman & Warshaw, P.C. (now Goldman, Warshaw & Parrella, P.C.) in writing, of Tomas Garcia's status and her efforts to resolve this matter.

Despite all the efforts of the guardian of Lucia Garcia and the Court Examiner to resolve the matter, on March 14, 2006 Jeffrey Parrella, Esq. of Goldman & Warshaw, P.C. filed a Verified Summons and Complaint on behalf of Asset Acceptance as assignee of Fleet Bank against Thomas (sic) Garcia in Civil Court of the City of New York, County of Queens.^[FN3]

Despite Ms. Garcia's subsequent correspondence with the attorneys at Goldman & Warshaw, P.C., reminding the firm of Mr. Garcia's legal status which required that she be served with any legal papers, Jeffrey M. Parrella, Esq. of Goldman, Warshaw & Parrella, P.C. filed for a default judgment on August 23, 2006.

At no point did anyone on behalf of Asset ever notify the Civil Court of Mr. Garcia's status.

This Court believes that Tomas Garcia, a ward of this court, has been the victim of the most egregious conduct by Fleet Bank, Asset Acceptance, LLC, its attorneys and representatives. For more than eleven years "Fleet" and "Asset" relentlessly pursued Tomas Garcia, an Incapacitated Person. First, by "Fleet" in its faulty lending practices, then by its retaliation in closing out the guardianship account, and then by its failure to even acknowledge the endless communication by this Courts' representatives. This malignity was continued by "Asset", Fleet's assignee, Phillips & Cohen Associates, and their attorneys.

The procedure for the commencement of an action against a person who has been judicially declared an incapacitated person is set forth in the Civil Procedure Law and Rules. However, before an action may be commenced against an incapacitated person a potential plaintiff must first obtain the leave of the Court that appointed the guardian. (Smith v. Keteltas) 50 NYS 471 (App. Div. 1st Dept. 1898). In re Shapiro, 253 AD 741, 300 NYS 774. This [*5]proposition has a long and sound basis since "[t]he custody of his [an incapacitated person's] estate is no longer in him, but in the court under the administration of the committee [now a guardian] of his property. He can not prosecute or defend a civil action in person or by an attorney after such committee has been appointed." Shatsky v. Seagate Association, 11 Misc 2d 905, 906, 172, NY2d 947, 949. Mtr. Of Deimer, 274, App. Div. 557, 85 NYS2d, 506. Mtr. Of Thomas, 286 App. Div. 1146, 146 NYS2d 18. "The Court, is clothed with full authority to determine the validity of claims... This summary remedy is favored by the courts, and is adopted in all cases unless some special facts or circumstances exist..." Grant v. Humbert, 114 AD 462, 464, 465, 100 NYS 44, 47. There are no special facts or circumstances, such as a claim which would have necessitated a separate action. See Kent v. West, 33 Ad 112, 53 NYS 244 (4th Dept. 1898), Meek v. Martin, 19 Misc 2d 649, 196 NYS 2d 744. Despite failing to obtain leave of court, Asset Acceptance Ltd. commenced an action for the debt.

A lawsuit can not be commenced against an incapacitated person. While an incapacitated person remains liable for his just debts, an action to recover such debts, indeed any action, must be commenced against the guardian in his or her fiduciary capacity and the caption of the action must be so designated so as to reflect the legal status of the defendant as an incapacitated person. Here, the Plaintiff sued Thomas Garcia individually. Nothing in either the caption, the affidavit of service, or indeed the entire Civil Court file indicates Mr. Garcia's status as a ward of the court.

Additionally, consistent with their lack of adherence to the laws of this state and compounding the problems for this Court, "Asset" failed to follow the requirements for service when suing an incapacitated person. The law requires that a plaintiff must serve both the incapacitated person and his or her guardian. Section 309(b) of the CPLR states: "Personal service upon a person judicially declared to be incompetent to manage his affairs and for whom a committee has been appointed shall be made by personally serving the summons within the state upon the committee and upon the incompetent."

The passage of Article 81 provided that "wherever a statute uses the term conservators or committees, such statute shall be construed to include the term guardian...," Laws of 1992, ch 698 Paragraph 4.Here, "Asset" served only Mr. Garcia in accordance with CPLR Section 308(4). There was never even an attempt to serve the guardian.

Upon this irregular service "Asset" requested that a default judgment be held in violation of CPLR Section 1203 without ever advising the court that the defendant was a judicially declared incapacitated person. That Section states: "No judgment by default may be entered against... a person judicially declared to be incompetent unless his representative appeared in the action or twenty days have expired since appointment of a guardian ad litem for him."

This court is now faced with the unenviable task of reversing the damage caused Mr. Garcia. Clearly, the judgment is invalid. Therefore, the court hereby vacates the restraint on the guardianship account at North Fork Bank under Restraint No.I33165/06. The firm of Goldman, Warshaw & Parrella, P.C. are directed to reimburse Mr. Garcia for any fees charged to his account by the bank. Next the court is left with having to undo the actions of Asset Acceptance, Ltd. and its attorneys from Goldman, Warshaw and Parrella, P.C.

In light of the courts' inability to rely on Asset Acceptance and its attorneys to comply with any lawful court procedure and does not trust that they will comply with an order directing [*6]them to vacate the judgment against Mr. Garcia, the Guardian is authorized to retain counsel to vacate the judgment of the Civil Court of the City of New York against Thomas Garcia entered under Index #33165/06. The legal fees for such action shall be paid by the law firm of Goldman, Warshaw & Parrella, P.C..

Furthermore, Fleet Bank, its successor The Bank of America, Phillip, Cohen & Associates, Asset Acceptance, Ltd., its assignees and subsidiaries are prohibited from attempting to collect this debt. The Guardian has satisfied the Court that the debt, which serves as the basis for the restraining notice and Information Subpoena, is not a valid debt and it would be a waste of judicial resources to grant leave to commence an action against the guardian.

Finally, Asset Acceptance, Ltd., Phillip, Cohen & Associates, Goldman, Warshaw & Parrella, P.C. must answer to this Court for their conduct in this matter.

Suing where a fiduciary has been appointed, without leave, is a question of contempt of Court. "In Chautauque" we not only said with respect to the creditor's failure to obtain leave that the question is merely whether the court will consider him in contempt and punish him accordingly.'" Copeland v. Abraham Salomon, 56 NY2d 222, 451 NY2d 682, citing Chautauque County Bank v. Riley, 19 NY 369, 377.

Therefore, Joseph Zande, Esq.; an officer legally entitled to bind the corporation of Asset Acceptance Ltd.; Adam S. Cohen, Esq., and Matthew M. Phillips of Phillips, Cohen & Associates, Jeffrey Michael Parrella, Esq. and Nghia Nguyen, Esq. of Goldman, Warshaw and Parrella, P.C., are directed to appear, with counsel, on September 25, 2007, in Part 20 of Queens Supreme Court, at 9:30 a.m., located at 88-11 Sutphin Blvd., Jamaica, New York to show cause why they should not be held in contempt of court for their actions in this case.

The Clerk is directed to serve a copy of this Order with Notice of Entry upon the following: Thomas Murtha, Esq., 15 East Centre Street, Woodbury, N.J. 08096; Adam S. Cohen, Esq.,

Co-Chairman & CEO, Phillips & Cohen Associates, Ltd., 695 Rancocas Road, Westhampton, N.J. 08060; Matthew M. Phillips,

Co-Chairman, & CEO, Phillips & Cohen Associates, Ltd., 695 Rancocas Road, Westhampton, N.J. 08060; Sharon Terrell, Asset Acceptance LLC, P.O. Box 44426, Baltimore, M.D. 21236-6426; Nghia Nguyen, Esq., Goldman, Warshaw & Parrella, P.C., 34 Maple Avenue, Suite 101, P.O. Box 106, Pinebrook, N.J.; Jeffrey Parrella, Esq., 10 Oakland Avenue, Suite 2-4, Warwick, NY 10990; Stanley Goldman, Esq., Goldman, Warshaw & Parrella, P.C., 34 Maple Avenue, Suite 101, P.O. Box 106, Pinebrook, N.J.; Joseph Zande, Esq., Legal Department, Asset Acceptance, P.O. Box 2041, Warren, MD 48090-2041.

Accordingly, the motion is granted to the extent indicated above.

——————————————-

CHARLES J. THOMAS, J.S.C.