Section 1: GENERALLY
After a copy of the execution and inventory has been served on the debtor, there are certain preliminary steps which must be taken prior to selling the property at a public sale.
The first step is placing an advertisement in a proper newspaper. Section 5233 of the CPLR authorizes a marshal to either (a) advertise and publicly post notices of sale, or (b) advertise the sale in the auction column of any morning newspaper published daily and Sunday in New York City, editions of which appear on the newsstands the night previous to the sale date, and which have a circulation of not less than 300,000. Any notice published in an appropriate newspaper must be sufficiently detailed so as to inform the public of the nature of the property to be sold. Additionally, these notices must state that the sale is public and must list the telephone number of the marshal conducting or attending the sale.
In instances where the marshal is in actual possession of property seized pursuant to a levy, the sale must be advertised two (2) calendar days prior to the scheduled date of sale. For example, if the sale is scheduled for Friday, the advertisement must appear Wednesday. Likewise, if the sale is scheduled on Tuesday, the advertisement must appear in the Sunday paper. Note: This applies only to property seized pursuant to levy and in the marshal's possession.
In instances where the marshal is not in possession of the property slated for sale, the advertisement must be placed in an appropriate newspaper dated the day of the sale.
Sales shall be conducted between the hours of 9:00 a.m. and 4:00 p.m., unless there are special circumstances which prevent the sale during these hours. All property subject to the sale must be present and in public view.
On the day of the sale, several announcements must be made prior to commencing a sale. A marshal must state that only the debtor's right, title, and interest in the property is being sold and that the property is being sold subject to all liens and encumbrances, if any. The marshal must explain that the property is being sold only to the extent of the debtor's interest and it is sold subject to the interest of any third parties (such as parties holding filed security agreements). In addition, a marshal must also state that he or she reserves the right to adjourn the sale at any time if the bids are too low.
A marshal must notify the creditor's attorney (and the creditor, if possible), by regular mail, telephone, or facsimile transmission, of the date and place of any anticipated sale. If the notification is mailed it must be postmarked at least five (5) days before the anticipated sale.
If a marshal is aware of the interest of any lienors upon the property to be sold, he or she must announce the existence and amounts of the liens, and must also notify the lienors of the time and place of the sale. If a marshal becomes apprised of a lienor subsequent to a sale, the marshal should provide the lienor with the buyer's name and address.
The law requires a marshal to sell the personal property of the judgment debtor in bulk or in lots or in any combination thereof which in the marshal’s judgment will bring the highest price. If a marshal wants to sell after receiving two bids, one bulk and one lot, the marshal must first determine the bulk bid and then the lot bid.
A marshal may, at his or her option, conduct the auction personally or use a licensed auctioneer. However, on the specific written request of any party involved, a licensed auctioneer must be used. If a marshal conducts a sale through an auctioneer, the marshal must be present at the time of sale. Any compensation paid to the auctioneer shall be deducted from the proceeds of the sale.
Return to top
Section 2: COLLUSIVE SALES
A marshal must attempt to obtain the highest bid for property offered for sale and, accordingly, must receive more than one bid. A marshal shall not permit individuals or groups to make bid-restricting arrangements or influence the result of the sale by resorting to intimidation or persuasive conduct that would hinder bidding. Furthermore, neither a marshal, nor his office staff, nor members of his family may bid at any sale held by any city marshal.
A marshal shall not sell any vehicle seized under the PVO Vehicle Seizure Program to any of the following:
- a marshal, an auctioneer in the program, and members of their families,
- employees of a marshal or an auctioneer in the program or members of such employees' families; or
- a collection agency, impound-storage facility, or towing company in the program, their owners or employees, or members of their owners' or employees' families.
Section 3: REMOVAL OF PROPERTY
Property purchased at a marshal's sale shall be removed from the premises by the buyer as soon as possible. The buyer has no right to occupy the premises, and the marshal shall not surrender the key to the premises to any person other than the tenant or landlord.
Return to top
Section 4: ADJOURNMENTS
A marshal may exercise reasonable discretion in the adjournment of a sale, provided such adjournment does not cause injury to the parties. The marshal must announce at the outset of the sale that he or she reserves the right to exercise discretion with regard to adjourning the sale if the bids are unreasonably low or if there are fewer than two bids.
Return to top
Section 5: BILL OF SALE
After the sale, a bill of sale must be signed by the marshal and prepared in duplicate by the marshal. One of the copies shall be delivered to the purchaser of the property, and the other retained by the marshal. Bills of sale are to contain a description of the property sold and the names and addresses of the purchasers. This information must also be posted in the marshal's records. A marshal must demand identification from the purchaser and must record on the bill of sale, as well as in the marshal’s docket book or record, the number from the identification piece, e.g., a driver's license number.
Bills of sale for motor vehicles, in addition to the above information, must also contain the following: Name, address, and registration plate of the prior owner; and the year, make, model, and vehicle identification number of the vehicle sold. A marshal is authorized to issue only one bill of sale for each automobile sold at auction. If the individual who purchased the vehicle from the marshal at auction later requests a duplicate bill of sale from the marshal, the marshal is advised to ask the purchaser why the duplicate is needed. If the marshal is informed that the original bill of sale was lost, destroyed, or stolen, the marshal is advised to require a copy of a police report filed by the purchaser and an affidavit, notarized, from the purchaser specifying the circumstances giving rise to the need for the duplicate bill of sale. The marshal may at his or her discretion issue a duplicate. The duplicate should contain an indelible marking, integral to the document, such as a watermark, clearly indicating that it is a duplicate. The purchaser’s affidavit should be attached to the duplicate bill of sale. The marshal should note on the face of the duplicate bill of sale that it was issued in reliance upon the attached affidavit of the purchaser. Marshals should exercise caution to prevent their official documents, including bills of sale from being used improperly.
It is the marshal’s responsibility to comply with all applicable State Department of Motor Vehicle regulations pertaining to the sale of motor vehicles, including the issuance to the buyer of all required forms.
Return to top
Section 6: SALE OF ALCOHOLIC BEVERAGES, DRUGS, AND CIGARETTES
Section 6-1: Alcoholic Beverages
A marshal must make application to and receive a permit from the State Liquor Authority before conducting a sale of any liquor stock seized pursuant to an execution. A buyer at a marshal's sale may take title to all contents of a licensed bar, retail store, or any equity therein. The buyer of any liquor must be a licensee under the rules of the State Liquor Authority. Any request for information relating to the sale of alcoholic beverages should be directed to the permit section of the State Liquor Authority, 317 Lenox Avenue, New York, New York 10027 (518) 474-3114.
Return to top
Section 6-2: Drugs
Prior permission is required from the U.S. Department of Justice, Drug Enforcement Administration (DEA), 99 Tenth Avenue, New York, New York 10019 (212) 337-1810, in all instances regarding the disposition of controlled drugs by marshals. When making a levy and sale or executing a warrant of eviction, if a marshal has knowledge that substances under the jurisdiction of the DEA will be subject to sale or transfer, he or she must first request permission to do so by submitting to the Special Agent in Charge of the New York Field Office a letter stating:
- the marshal's name and address;
- the name and quantity of each controlled substance to be disposed of;
- how the marshal obtained the substance; and
- the name, address, and registration number, if known, of the person who possessed the controlled substance prior to the marshal.
The Special Agent will authorize and instruct the marshal to dispose of the substance in one of the following manners:
- by transfer (e.g. sale) to a person authorized to possess the substance;
- by delivery to an agent of the DEA or the nearest office of the DEA. In this case, the marshal shall complete a special inventory form available from the DEA;
- by destruction in the presence of an agent of the Bureau or other authorized person; or
- by such other means as the Special Agent may determine to assure that the substance does not become available to unauthorized persons.
In addition, the marshal shall notify the Senior Investigator of the Office of Professional Discipline, New York State Education Department, 163 West 125th Street, Room 819, New York, New York 10027 (212) 961-4369. The Office shall be notified at least seven days prior to sale. The Office, at its option, will send a licensed pharmacist as an inspector to the public sale of pharmaceuticals.
Return to top
Section 6-3: Cigarettes
The New York City Administrative Code, Title 11, Chapter 13 requires a person who intends to sell cigarettes first to obtain a license. A marshal who intends to sell cigarettes should first contact the New York City Department of Finance, Enforcement Division, CTX Unit, 30-10 Starr Avenue, 2nd Floor, Long Island City, New York, 11101, (718) 610 44080. The Department of Finance will determine whether the marshal will be issued a wholesale or retail license. Wholesale licenses are issued by the Department of Finance, and retail licenses by the Department of Consumer Affairs Licensing Center, 42 Broadway, 5th Floor, New York, New York 10004, call 311 to reach by phone. The marshal should also inquire of the Enforcement Division what other units within the Department of Finance should be notified of a pending sale.
Additionally, Article 20 of the New York State Tax Law, “Tax on Cigarettes and Tobacco Products,” requires that a person who intends to sell cigarettes or tobacco products as a retailer must obtain a Certificate of Registration and that a person who intends to sell cigarettes or tobacco products as a wholesale distributor must obtain a license from the New York State Department of Taxation and Finance. A marshal who intends to sell a cigarette or tobacco product must first contact the New York State Department of Taxation and Finance, Metro NYC Regional Office, Criminal Investigations Division, 15 Metro Tech Center, 2nd Floor, Brooklyn, New York 11201 (347) 390-7481. The New York State Department of Taxation and Finance will determine whether the relevant registration or license will be issued and the cigarettes or tobacco sold, or whether the cigarettes or tobacco products are contraband and subject to seizure by the Department of Taxation and Finance.
Return to top
Section 7: Section 7: SALES TAX
Sales tax must be paid by purchasers. In cases where the property is purchased for resale, the marshal must be presented with a current New York State tax re‑sale certificate, the number of which shall be recorded on the bill of sale and in the marshal's docket book.
Section 8: DEPOSITS AND PAYMENTS
A marshal, at his or her discretion, may require a ten percent (10%) deposit on all bids over fifty dollars ($50) and must receive payment of the balance after the final bid. However, in all cases, the final payment must be in cash or certified check, to avoid the inherent risk of accepting the buyer's credit.