Civil Contempt v. Criminal Perjury – Post-Judgment Truth or Dare?

In a recently reported case, a New York Judge denied the judgment-creditor's motion to punish the debtor for contempt of court. The attorney for plaintiff contended that debtor made a number of false statements at his post-judgment examination as his basis for the motion.

The Judge restated New York State law that in order to prevail on a motion to hold a defendant in contempt, the movant must prove by clear and convincing evidence "(1) that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) that the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) that the movant was prejudiced by the offending conduct"

There didn't seem to be much debate as to (1) and (3) because the creditor's attorney made all the right allegations in his papers. Ultimately the Judge concluded that the creditor's attorney was not able to make out a case for contempt as to (2), but that the witness might be subject to a criminal perjury charge for any false swearing. The Court's decision was solid on the law in that the witness actually appeared for the examination and therefore could not be found in contempt of the subpoena obligating him to appear.

But the decision makes me wonder if punishing the civil contempt would have been a better option for the Judge. If the creditor pursues a criminal perjury charge, the purpose of judgment-enforcement is defeated. Now the debtor has to divert his/her assets to criminal defense rather than satisfying the judgment.

I think this Judge just wanted to watch the creditor's world burn.

Elliott Portman is a creditor's rights attorney with Portman Law Group, P.C. who regularly engages in creditor’s rights law matters.  Mr. Portman is Counsel to Rosenthal & Goldhaber, P.C. and can be reached at Elliott@NYCollections.com or 631-979-8500.

Views: 6

Members

Latest Activity

David Gussin posted blog posts
16 hours ago
David Gussin posted a blog post

516Ads & 631Ads - Coming Up Next: May 2017 Dates, Food Drive ...

516Ads & 631Ads Coming Up Next:MAY FOOD DRIVE...all month long! Long Island Cares strives to not only meet the immediate need for emergency food relief on Long Island, but also to eliminate the underlying root causes of hunger itself.…See More
yesterday
Portman Law Group, P.C. commented on David Gussin's event 516Ads & 631Ads - Nassau Business Luncheon @ Havana Central
"If Francine is going to be there, I am going to be there."
Thursday
Portman Law Group, P.C. is attending David Gussin's event

516Ads & 631Ads - Nassau Business Luncheon @ Havana Central at Havana Central

May 2, 2017 from 12pm to 2pm
516Ads.com & 631Ads.comNassau Business Luncheon@ Havana CentralTuesday, May 2, 2017  12PM - 2PM@ Havana Central - Roosevelt Field, 630 Old Country Rd, Garden City, NY516Ads & 631Ads is proud to team up with Francine E. Love, Esq. - …See More
Thursday
Portman Law Group, P.C. commented on HRPRO Consulting Services, LLC's status
"That's a great article!"
Thursday
Mary-Allison Mays, LLC and David Gussin are now friends
Wednesday
Mary-Allison Mays, LLC updated their profile
Wednesday
HRPRO Consulting Services, LLC is attending David Gussin's event

516Ads & 631Ads - Nassau Business Luncheon @ Havana Central at Havana Central

May 2, 2017 from 12pm to 2pm
516Ads.com & 631Ads.comNassau Business Luncheon@ Havana CentralTuesday, May 2, 2017  12PM - 2PM@ Havana Central - Roosevelt Field, 630 Old Country Rd, Garden City, NY516Ads & 631Ads is proud to team up with Francine E. Love, Esq. - …See More
Tuesday
David Gussin posted an event

516Ads & 631Ads - Nassau Business Luncheon @ Havana Central at Havana Central

May 2, 2017 from 12pm to 2pm
516Ads.com & 631Ads.comNassau Business Luncheon@ Havana CentralTuesday, May 2, 2017  12PM - 2PM@ Havana Central - Roosevelt Field, 630 Old Country Rd, Garden City, NY516Ads & 631Ads is proud to team up with Francine E. Love, Esq. - …See More
Tuesday
David Gussin posted a blog post

516Ads/ 631Ads - BUSY MONDAY: 8AM - Panera Nassau, 6PM - Jones Beach Hotel .. hope to see you there!

516Ads.com & 631Ads.comPanera Nassau Business BreakfastMonday, May 1, 2017 8AM - 10AMPanera Bread - 2375 Merrick Road, Bellmore NY (Upstairs)516Ads.com & 631Ads.com is proud to team up with event sponsor Mary Redler -…See More
Tuesday
HRPRO Consulting Services, LLC is attending David Gussin's event
Thumbnail

516Ads & 631Ads - Panera Nassau Business Breakfast - Monday, May 1, 2017 8AM at Panera Bread

May 1, 2017 from 8am to 10am
516Ads.com & 631Ads.com Panera Nassau Business Breakfast Monday, May 1, 2017 8AM - 10AM Panera Bread - 2375 Merrick Road, Bellmore NY (Upstairs) 516Ads.com & 631Ads.com is proud to team up with event sponsor Mary Redler -…See More
Monday
Edward Jones updated their profile
Monday

© 2017   Created by 516 Ads.   Powered by

Badges  |  Report an Issue  |  Terms of Service