Leaf Funding, Inc. v HSBC Bank USA, N.A.

[*1] Leaf Funding, Inc. v HSBC Bank USA, N.A. 2009 NY Slip Op 52282(U) [25 Misc 3d 1224(A)] Decided on October 6, 2009 Supreme Court, Queens County McDonald, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 6, 2009
Supreme Court, Queens County

Leaf Funding, Inc., Petitioner,

against

HSBC Bank USA, N.A., KURTIS MILLER and HOPE MILLER, Respondents.



22761/09



Petitioner's attorney:

Frank Peretore, Esq.

Peretore & Peretore

110 Park Street

Staten Island, NY 10306

Robert J. McDonald, J.

Petitioner, by notice of petition, seeks an Order of the Court, for a Turnover of Funds regarding HSBC Bank U.S.A., N.A. account No.992-01884-6 in the amount of $3,916.20.

In support of the petition, petitioner submits the affidavit of Frank Peretore, Esq. of Peretore & Peretore, P.C., based upon personal knowledge and in support of the petition for the turnover of the bank account funds.

Kurtis Miller and particularly non-judgment-debtor, Hope A. Miller have failed to respond to the petition.

The underlying action is based upon a default judgment obtained on June 20, 2008 by Leaf [*2]Funding, Inc. against DMG Holding & Property, Inc. and Kurtis Miller in the amount of $47,868.13 (Exhibit A).

A Restraining Notice and Information Subpoena were served upon HSBC Bank, USA, N.A. In a letter dated July 24, 2008, HSBC Bank advised petitioner that a joint account under #

992-01884-6 existed in the Name of Kurtis Miller and Hope Miller in the amount of $4,501.39 (Exhibit C).

There are two presumptions which apply to joint bank accounts. One is that each tenant is said to be possessed of the whole account (citations omitted). The other is that the opening of the account creates a presumption that each of the parties is entitled to half the account (citations omitted) Mendel v. Chervanyou, 147 Misc 2d 1056 (Civil Ct., Kings Co. 1990).

In Ford Motor Company v. Astoria Federal, 189 Misc 2d 475, 733 NYS2d 583 (Nassau Dist. Co. 2001), the Court found that the default by the non-judgment debtor account holder established the right of the judgment creditor to the entire amount deposited in the bank account.

However, in Mendel v. Chervanyou, 147 Misc 2d 1056, 559 NYS2d 616 (Civil Ct., Kings Co. 1990), the judgment creditor claimed that it was entitled to the full proceeds of the joint account. The Court held that a rebuttable presumption exists as each joint tenant owns half of the account. In addition, the judgment creditor had the burden to prove that the presumption should be rebutted to allow the judgment creditor to levy more than half of the account. The Mendel Court held that the judgment creditor failed to rebut the presumption even though the non-judgment debtor tenant defaulted, concluding that the failure of the non-judgment debtor to appear does not constitute a rebuttal of the presumption.

Thus, "'the creditor must come forward with evidence to rebut the presumption of [the non-debtor tenant's] one half ownership.'" Direct Merchants Credit Card Bank v. Greenpoint Bank, 2003 WL 2004163 (NY Dist. Ct.) quoting State of New York v. Republic Bank for Savings, NYLJ , August 8, 1994, at 28, col. 4 (Sup. Ct., NY Co.) (Cahn, J).

Mr. Peretore has attached as Exhibits "D" and "E", documents provided by HSBC Bank, USA, N.A. which include bank account statements, checks and deposit slips. Mr. Peretore has concluded upon analysis of all documents that "of the total deposited by Kurtis Miller and Hope Miller $165,541.27 was deposited by Kurtis Miller and $24,190.95 by Hope Miller. Therefore, Kurtis Miller deposited 87% of the monies in the account. As a result plaintiff [sic] is entitled to recover 87% of the monies in the account or $3,916.20" more than one-half of what is currently held in the joint account.

Based upon this extensive documentation of bank account statements, checks and deposit slips (Exhibits "D" and "E") it is evident that there is a disproportionate ownership of the joint account. [*3]

Accordingly, the petition is granted without opposition; and, it is further

ORDERED AND ADJUDGED, that HSBC BANK, USA., N.A. is hereby directed upon receipt of a certified copy of this order and judgment, to turn over to the petitioner, LEAF FUNDING, INC., $3,916.20 of the funds of the account bearing the number 992-01884-6 belonging to KURTIS MILLER and HOPE MILLER; and, it is further

ADJUDGED, that upon such turnover of funds, the respondent HSBC BANK USA, N.A., shall be discharged of all liability on this account to the extent of payment made.

Dated: Long Island City, NY

October 6, 2009

ROBERT J. MCDONALD

J.S.C.