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Help - garnishing wages


ras82
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Hi all. A friend of mine called me this morning crying her eyes out. Her fiance got a letter at work last night saying that Citibank is going to take out 25% of his paycheck. It was already taken to court and apparently, they had no clue this was happening. They tried to call the lawyer on the letter, but they said there is nothing that can be done. My friend is panicking. She has two young kids and they have been trying so hard to make ends meet. Now they are going to be completely broke.

What can she do? They probably make like $20k a year. Can they file for bankruptcy?? Is there anything at all?

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Has Citi gotten a judgement against them? If so, and they were never served then read the menu item at the top about "vacating judgements".

If there is no judgement, and its Citi just trying to collect, it may just be a threat...

If there's a CA involved, then use the DV process on them...they may have already violated the FDCPA by threatening an action they don't intend to take...

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Its really hard to tell. Often collectors send out papers that look like official documents. The best thing to do is call the local court and see if indeed a judgement has been awarded. And, as I said, if it has, and this is the first your friend has heard of it...read the "vacating judgements" thing at the top.

The point is...Citibank can't just show up in court and file paperwork that automatically results in a wage garnishee. There is a process they have to go through and your friend should have been informed that it was happening long before this...

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Thank you! You're so great. I just called her and told her to call the court. She's going to get back with me and let me know what they said. If they indeed file a judgment, I'm going to print out the page about vacating judgments for her. Hopefully they can get this straightened out.

She says she's not sure if they got a letter about this and that maybe they overlooked it. Wouldn't there be a subpoena or something? WHy wouldn't they show up at your door or send certified mail to make sure that you know for sure what's going on? Is this usually what happens?

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Each state does have different laws about notifiying people of court actions, but, the usual practice is that your friend should have received a "summons". Sometimes they're mailed, sometime hand delivered by a sherrif or process server. In all cases, your friend should have been told that a court action was pending and given a chance to show up and tell their side of the story.

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She still hasn't called me back yet so I don't know if that's a good or bad thing. Anyway, I looked up our laws. It looks as if they can just send a letter by regular mail and that's that. However, my eyes tend to glaze over when I'm reading this stuff so maybe I'm reading it wrong.

(A) Any person seeking an order of garnishment of personal earnings, after obtaining a judgment, shall make the following demand in writing for the excess of the amount of the judgment over the amount of personal earnings exempt from execution, garnishment, attachment, or sale to satisfy a judgment or order, or for so much of the excess as will satisfy the judgment. The demand shall be made after the judgment is obtained and at least fifteen days and not more than forty-five days before the order is sought by delivering it to the judgment debtor by personal service by the court, by sending it to the judgment debtor by certified mail, return receipt requested, or by sending it to the judgment debtor by regular mail evidenced by a properly completed and stamped certificate of mailing by regular mail, addressed to the judgment debtor's last known place of residence.

So? Does it seem as if they can just send a regular 'ol letter? If so, that is really messed up.

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Well...there's two key phrases there...

"...AFTER OBTAINING THE JUDGEMENT..."

and

"...excess of the amount of the judgment over the amount of personal earnings exempt from execution, garnishment..."

First they have to get a judgement...serving summons may be something else.

Second, they can only take a certain amount...if your friend doesn't make much, and their living expenses are taking most of what they make, they may be judgment proof...

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Thank you!!

Well, she called the courthouse and the judgment is real. I'm bringing over the printout of vacating the judgment but it will probably take awhile to go through with, huh? They are looking for a new place to live already because they know they won't be able to afford the place they're in now. :( This is so incredibly sad. They are meeting with a bankruptcy lawyer on Dec 12 but it's so far away. She says the lawyer said that the garnishment is effective immediately and that she should expect to have the money taken out on his paycheck this Thursday. :( So they know they will not be able to pay for rent next month.

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Tell them to go to Court, pull the case file using the docket number, then look for proof of service. This would be either a green return receipt from the USPS or a sheriff's affadavit (usually attached or stuck to the backside of a citation or summons). If neither is in the case file, they can mark it up for a motion to vacate judgment (most courts will have forms for this) and give ten days to allow the other party to be properly served. The opposing attorney should have an answer in the case file, so sending via certified mail should be unnecessary. At the hearing they will have an opportunity to argue their case. They may want to threaten action under the FDCPA and they may even have grounds to move for sanctions against the attorney or Citibank, if service is sloppy or not complete.

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Filing immediately isn't as easy as it once was. The new requirement for credit counseling can throw a serious monky wrench into things. I think they can still file an emergency petition, but he is going to have to take that credit counseling within a set period of time or the case will be dismissed. He needs to as the BK attorney about that NOW.

As for garnishment, as long as he makes at least 30x the Federal minimum wage ($5.15) after federal taxes are taken out, then they CAN garnish his wages.

He can file an appeal to the garnishment immediately. He may be able to make payments thru the court in lieu of garnishment, its called "slow pay", so call the courthouse and find out if that option is available in OH.

Sounds to me like a 2nd job by one or both of them may be in order.

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