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judgment / garnishment question - another UPDATE 5/8/05


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UPDATE HERE:

We got to court this morning and the CA atty walks in and informs the judge that he has another court appearance downstairs, will be back when he's finished. So he finally comes back and the judge will not look at anything my sister brought. She has paid $1590 and the atty says "no, she's only paid $1100". (the judgment was for $1706) She tried to submit documentation, judge wouldnt look at it.

he flips back and says why didnt you answer the original court date for the judgment, he says Michael Burns was served at this address. She says, thats my moms address - but no michael lives there, dont even know a michael burns.

Judge says - oh well that was in 2001 you have had time to do something about it before now - garnishment stands - balance is $2200.

i am shocked!

my sister had a continuing garnishment (CG) that expired in february (we are in GA and the CGs are only set up for 6 month increments). I DV'd the collection agency for her at the end of Feb and asked for all the normal stuff in a DV letter, as well as any paperwork they had regarding the judgment and garnishment, as my sister never rec'd anything. They responded with 4 bills that were past SOL and the amount did not total what the garnishment was for ($2000 something).

They didnt send anything regarding the judgment and before we received their response, they filed another garnishment in the courts. They already garnished $182 out of her check.

is this right? She only makes $9 an hour and works about 36 hours a week. She's a single mom of 2 kids and they are taking $182 of out every check (she's paid bi-weekly)? thats almost half her income!

Please help with any advice!!!

Thank you,

Shannon

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She needs to file a Motion to Quash the garnishment ASAP. She does NOT have to sit by while they take 1/2 her pay, she CAN challenge the garnishment. If its causing a hardship, then she needs to make her case for hardship and be prepared to prove it.

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so you think she would be better off to file a Motion to Quash instead of a motion to vacate. i dont know too much about either, only what i have read about vacating a judgment from teh link above. i dont know anything about a Quash. but i am researching now.

if you have any tips or anything about this, i am more than open to ideas!

Thank you!

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  • 1 month later...

Find out where and when the judgement was imposed. If she was never served then there are two ways to attack it. First is straight up vacate based on lack of jusidiction. The second is that it is a void or voidable judgement. If you go the route of voiding the judgement then you can file FDCPA claims against them as well.

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she went to the court house to get a copy of any paperwork they had. they gave her two files to copy - but they were only files of the last 2 garnishments. (one garnishment expired in feb of 05 - we dv'd the CA in january, never got a thing from them. they filed for another garnishment on 2/15/05, but the certified letter wasnt mailed to her until 3/25/05).

I was able to pull up the cases online and i found that the judgement was granted in Febuary of 2001 - and she was never served. it says that they sent it CMRR - but she never got it.

Little anxious since court is in one week! I have been doing all the research and filling her in - i will be going to court with her.

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Service of Process varies among the states. It is entirely possible and especially with small claims actions that if sent out CMRR and not claimed or refused it is considered served. Since Certified Mail is usually bad many people do not claim so they would not know of adverse actions until after the fact.

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Check court rules on vacating judgements. Every state is different on how long you can vacate a judgement. Most it is one year I believe. However after that you can void a judgement if it was not proper. What court did they file this in, was she in that district when they did it?

Lack of jurisdiction means several things. however in this case it would be one of two things, they filed suit in a county that she was not in, therefore the court could not hold a ruling againest her. The other is when she is not properly served the court does not have jurisdiction to impose a judgement.

If you know where the original case was filed and the case number, you should since you looked it up. Go to the court and get a copy of that case, including the service of summons.

If you are going to go the route of voiding the judgement you need to get a motion filed before the day of court requesting an order to void the judgement. Most likely the judge will not rule on your motion that day since it will be so soon the other side will not be able to reply. But you can ask for a stay of any garnishment pending disposition. This will at the very least provide some time.

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i will have her go get a copy of that judgment since i found the number. The thing is, we got to adding up the amounts she has paid. The original judgment was for $1706 in feb of 2001. A garnishment was filed at $2400 in feb of 04. She paid over $1000 in 2004. In February of this year, they refiled the garnishment at $2200. We have asked to see where the money has gone - but get no answer from the CA.

The judgment online says that service was perfected to my sister - but she didnt get a thing regarding a court date. We'll get the service of summons and try to file a motion to void the judgment.

thank you so much for the info!

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court is monday - getting a little nervous.

i did send my sister to the court house with the judgment number so she could look for the summons of service. They told her it was in 2001, so they would have to dig for that file. when they did get it, it only had one paper in there. no service of summons was in there????????

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Ok, since the file appears to be incomplete have her prepare a affidavit stating she was not served and had no knowledge of the proceding in that case until the garnishment was imposed and that the court file has no information on service of process in it. Make sure you take what they gave you with yoith you to court with copies to give to the Judge and opposing lawyer.

Be prepared for them to whip out the affidavit of service for the original case. They may not have it but be prepared to counter it just in case. Get documentation of where she lived all this time if she has moved around. If there were other people living there get written statements that they have no knowledge of the service.

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she was really looking for help in the garnishment, not the judgment really. we knew it was so long ago that we would have a hard time attacking it that way. But when he wouldnt even look at the returned checks and pay roll stub showing the total amount really paid?????? There is a difference of $500 that they are not accounting for.

that just doesnt seem right to me.

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Remember, she had a judgment from 2001. Interest accrues on that judgment at a stautory rate ( in NYS, it is 9%). If the garnishment is involuntary and the sheriff is collecting it, the sheriff adds his fees to the mix ( In NYS it is 5% of every payment). So, the balance can be easily affected by a double digit add-on. When you pay it, the payment is applied first to the sheriff's fees, then to interest, then to principal. You can see how it will take a while to whittle down the balance.

What she needs to do is go to a budget counselor, have them come up with a plan that shows her income/expenses and how the garnishment hurts her and her family. There are statutory limits as to how much they can take from a paycheck. But beyond that, she should make a cogent argument that says " I can't pay what they are taking, but I can pay X and here's why, so please, your honor, use your discretion and modify the garnishment to order them to take what I can reasonably afford without becoming a public charge. "

Sounds like she wants to take care of this but cannot. If a modification doesn't work, she should consider a Chap 13 BK.

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since motion was denied - we are looking at BK as an option.

in the meantime, we are trying to gather a list of violations on this CA.

would this be a violation under section 807

falsely representing the character, amount, or legal status of any debt, in violation of Section 807(2)(A) of the FDCPA, 15 C. 1692e(2)(A);

would that be since the atty openly stated in court in that amount received was not the amount she has paid? they are saying that she owes $500 more than what she does. of course they can come and say the interest might be the difference - but that money was paid - and not posted to her case.

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Heck yeah you could file a claim against them .

I think that is misrepresenting the amount of the debt and .. and it just might fall under fair billing and you might want to check state statutes.

The judge also needs to have a complaint filed against him with the bar for failing to do his job.,

It is his job to see that justice is done correctly.. not sloppily as it has been in this case

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well im the lucky one who has been denied in vacating this judgement...if i could request the recordings of the actual court proceedings it would be rather clear that i was pushed asided and ignored by the judge...

i dont understand why the judge didnt even look at one of my documents to help prove my argument or why it didnt bother him that i didnt know the apparent person who was served with my summons...

the opposing lawyer even told the judge that i bounced numerous checks with the CA - and that was a lie...did the judge look at my cleared checks - no!!!

just feeling overwhelmed on which course i should go...chapter 7? fight this tooth and nail - fearing that they will hit me hard with whatever remaining accts they have on me...

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  • 2 weeks later...

after the court date, my sister received a letter from this CA. THe letter was dated 4/27/05. In this letter they state that they have 2 judgments against my sister (we were only aware of the one). They also included a sheet in this letter that that states...

Georgia Statue of Limitations for Civil and Personal Injury Actions

"statue of limitations"

A statue of limitations is a law which places a time limit on pursuing legal remedy in realtion to wrongful conduct. After the expiration of the statutory period, unless a legal exception applies, the injured person loses the right to file a lawsuit seeking money damages or other relief.

why in the world would they send this with their letter? is this their way of intimidating her into NOT filing a suit against them?

Also in their letter, they finally included the medical bills that they got the judgment on. Two of the accounts are for the exact same procedure, same date and everything. ANd now not only does she have to pay for BOTH of these charges, but she also has to pay interest on this since its in the judgment?

How can she get out of this since we already know that the judge will not look at her defense on this?

Any suggestions on what she can do? Please!

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She needs an attorney plain and simple.

You need to start contacting legal aid services in your area or anything else that can assist you in getting these jerks on their violations.

I think the judge is prolly a "Good ole boy" and didnt give a rats a$$ about following procedure etc...

So yeah... get an attorney.. file complaints with the bar against the judge or whatever you can do.

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