By Charisma L. Miller, Esq.
Brooklyn Daily Eagle
New York State Gov. Andrew Cuomo has signed into law a legislative measure to curb filings against judges and other public officers.
The Uniform Commercial Code (UCC) contains a provision that allows creditors to record an interest in a debtor's property, thus giving notice to other creditors, future and present. A creditor can file financing statements, which are accessible via an online search engine, showing that a particular debt is owed. Banks and other financial institutions, as well as employers and members of the public, can access these records and often use them as a determination of an individual’s credit risk.
In recent years, incarcerated persons and others with grievances against judges and other court personnel began filing fraudulent financing statements on the UCC database, making it appear as though a particular judge, for example, is in default of non-existent outstanding debts. There has been a “dramatic increase in number of fraudulent UCC filings,” the National Association of Secretaries of State noted in its August 2012 report.
“This new law, initially proposed by Chief Administrative Judge [Gail] Prudenti, will assist judges and other public servants who have been harassed in the last few years by members of separatist groups, frequently inmates,” noted Administrative Judge for Criminal Matters for the Second Judicial District, Barry Kamins. “These individuals have filed or attempted to file fraudulent liens, hoping to create personal financial problems for the judges.”
The new legislation makes it a Class E felony to knowingly file a fraudulent UCC financing statement against a judge in cases where the fraudulent filing is “in retaliation for the performance of official duties.”
“The new law creates procedures to dismiss fraudulent liens and increase criminal penalties for those who file them,” Kamins told the Brooklyn Daily Eagle. If a judge, for example, believes that a financing statement was fraudulently filed against him or her as a means of retaliation, a special proceeding will be initiated. It places the burden on the judge to show that the financing statement was in fact falsely filed or amended to retaliate for the performance of official duties. If it is determined that the financing statement was falsely filed, the document will be expunged or redacted.
The new law also requires that in cases where expungement or redaction of a false financing record is achieved, a copy of the expungement order must be given to the wrongful filer.
"It is a significant problem," Prudenti told the New York Law Journal. "We are seeing it throughout the state and throughout the country, and we have to redress it.”
The new law also grants the Office of Court Administration and the chief administrative judge, in particular, the power to create rules governing the special proceeding and facilitating speedy disposition.