Chapter 28
Creditors’ Rights and
Remedies
Case 28.1
867 N.E.2d 260
Court of Appeals of Indiana.
INDIANA SURGICAL SPECIALISTS, Appellant-Plaintiff,
v.
Helen GRIFFIN and MDS Courier Service, Inc., Appellee-Garnishee-Defendant.
FN2. MDS is a courier service, delivering “mainly just medical through the hospitals and so forth.” (Tr. at 6.)
DISCUSSION AND DECISION
Indiana Surgical argues the trial court erred by declining to enforce the garnishment order issued to MDS on the ground Griffin was
a “subcontractor” and not an employee of MDS. Indiana Surgical asserts the trial court’s “distinction between wages subject to
FN3. Indiana Code art. 24-4.5 is known as the Uniform Consumer Credit Code. It is derived from the federal Consumer Credit
Protection Act, which is codified at 15 U.S.C. § 1601
et seq.
The specific provisions addressed in
Kokoszka
are found in 15 U.S.C.
FN4. In
Fisher Body v. Lincoln Nat’l Bank & Trust Co. of Fort Wayne,
563 N.E.2d 149, 151 (Ind.Ct.App.1990), we held a lump sum
severance payment made to an employee does not fall within the statutory meaning of “earnings” or “disposable earnings”
Case 28.2
Copr. (c) 2010, Secretary of State, State of New York
NY,2010.
Overseas Private Inv. Corp. v Nam Koo Kim
NY,2010.
69 A.D.3d 1185895 N.Y.S.2d 217, 2010 WL 184228, 2010 N.Y. Slip Op. 00437
Overseas Private Investment Corporation, Respondent
v
Nam Koo Kim et al., Appellants.
Supreme Court, Appellate Division, Third Department, New York
terms whether or not he or she read it; wife, who by her own admission had no contact with plaintiff in regard to
transaction, presented no documentary evidence to support conclusion that *1186 plaintiff used duress or fraud to
procure her signature on document; as such, she was bound by terms of her guaranty.
Girvin & Ferlazzo, P.C., Albany (Robert F. Manfredo of counsel), for appellants.
Linda T. Taverni, Chestertown, for respondent.
this action seeking recovery of the amount due under the note, together with interest and counsel fees. Plaintiff
moved for summary judgment and Supreme Court found that the husband was liable for the payment of the
promissory note he executed and that the wife was liable pursuant to the personal guaranty she executed in
connection with this note. The court denied plaintiff’s motion as to the amount claimed to be owed and directed that
an inquest be conducted to determine plaintiff’s damages and counsel fees. Defendants now appeal.
payment of the amount due under that note (
see Agai v Diontech Consulting, Inc.
, 64 AD3d 622, 623 [2009];
Verela v
Citrus Lake Dev., Inc.
, 53 AD3d 574, 575 [2008];
Smith v Shields Sales Corp.
, 22 AD3d 942, 944 [2005];
Judarl v
Cycletech, Inc.
, 246 AD2d 736, 737 [1998];
see also Hirsh v Brunenkant
, 51 AD3d 1258, 1259 [2008]). Here, plaintiff
submitted documentary evidence establishing that the wife gave a written commitment guarantying the obligation
created by the promissory note that is in default. Upon such a showing, it was incumbent upon defendants to avoid
obligation was limited to the value of her real estate interest in Virginia. In addition, the terms of the guaranty are clear
on its face and specifically provide that the wife has guarantied full payment of the promissory note. In fact,
immediately above the wife’s signature is an acknowledgment to the effect that she “has received a copy of this
Restructured Loan Deferral Letter, agrees to all terms and conditions hereof, and confirms that the Personal Guaranty
is, and remains, in full force and effect.” In short, the wife’s contention that it was her understanding that she was
different versions of the agreement actually exist that would in some way negate the validity of the wife’s guaranty. In
that regard, the wife specifically seeks additional information as to how the guaranty documents were transmitted to
her and points to an e-mail as support for her contention that she was sent only the page of the agreement that bears
her signature. However, the e-mail in question simply requests that the wife “execute the guaranty agreement and
send in the signature page soon to [plaintiff].” The fact that plaintiff only sought return of the signature page does not,
