jq26 Posted November 7, 2008 Report Share Posted November 7, 2008 CliffNotes:Now: Mom owns home and lives with Brother 1 (24 yrs old) and Brother 2 (20 yrs old).August 08: Brother 2 had exgirlfriend sue him in small claims 3 months ago for a computer she bought on her credit card and rent he never paid on a joint lease when she asked him to move out. They had lived together for 18 months. Brother 2 does not show up to court to defend and default judgment against him for $3500 ($3100 + $400 in fees). November 08 (yesterday): Sheriff shows up to Mom's house with writ of execution. Records the home, ALL assets in the home, Mom's vehicle, Brother 1's vehicle, and Brother 2's vehicle. Mom and Brother 2 explain that Brother 1 doesn't own any of these items except for his own car (fmv about $2000), but Sheriff explains that in this county, all items listed will be sold unless MOM and Brother 2 appear in court and prove their cars and the home are NOT owned by Brother 1. Mom and Brother 1 are very upset with Mom in tears. This is when I get the call and learn about all of this...1) Is the execution of judgment on Mom's house & car, and Brother's truck appropriate? I'm seeing a major due process issue here. Assume 5 people who own cars rent a house and one has a judgment. Would the sheriff levy all five cars and make roommates prove ownership? Seems like an act of conversion to me. Last night I read treatises, PA Rules of Civ Pro on execution of judgment and they only generally state that levy of debtor property is done by x, y, z procedure. This is clearly not debtor property if they'd take 5 minutes to check records. sheriff stated he is not allowed to check records...that the burden is on Mom and Brother 1 to prove lack of ownership by Brother 2 and appear in court! The sheriff apparently gave my mom and brother a 30 day window to fight it but stated he could have towed the vehicles and removed assets the same day. 2) Assume Mom and Brother 1 take a day off from work and release their property from the order of execution at the courthouse. I know we're late in the game here, but can Brother 2 file a motion to vacate judgment? Apparently the ex g/f forgot to mention he had his tax refund check ($1800) deposited in her account to pay for the computer...and that she replaced him with a new roommate (reducing damages on the breach of the lease). He legitimately owed her about $600 but she won $3100 based on an omission of these facts. Link to comment Share on other sites More sharing options...
nascar Posted November 7, 2008 Report Share Posted November 7, 2008 Brother 2 could certainly move to vacate, but you'll probably agree that the end result is that he's learned an expensive lesson. Even if he went back and tried to file some kind of equity suit, it would probably be barred by res judicata, don't you think? Link to comment Share on other sites More sharing options...
jq26 Posted November 7, 2008 Author Report Share Posted November 7, 2008 Even a plaintiff with a defendant not appearing should have to submit truthful proof of debt. But he was properly served and decided that the measley $50 /per day he earns at his crap job was worth more than defending himself. Expensive less for him, YES. I read him the riot act. He's not really my major concern though. I fully expect him to lose the car at auction (which mom paid for in full as a loan- mostly unpaid at this point). Its one irresponsible act after another. The concern is he has no money and my brother and mother are innocent parties to this. How is it possible they are being brought into this? My brother owns two things: the car and the clothes on his back. But this sheriff recorded everything on the property- items that clearly aren't owned by him and easily searchable.Q: What about a payment plan? Too late for that? No car means no job for him. I don't want to see him start a downward spiral at 20yrs old based on a few bonehead decisions. Link to comment Share on other sites More sharing options...
nascar Posted November 7, 2008 Report Share Posted November 7, 2008 Isn't there an asset exception form that your mother and brother can obtain from the clerk's office? Link to comment Share on other sites More sharing options...
jq26 Posted November 7, 2008 Author Report Share Posted November 7, 2008 I saw it in the statute, but it looked like it was for the debtor to claim their PA exemptions...which is a Bible, sewing machine, or $300 cash. I won't see the paperwork until tonight. I'm asking these questions to preemptively arm myself.In the bigger picture, shouldn't the onus be on the one performing seizure to prove ownership by debtor? I distinctly remember my BK professor stating that seizure of non-debtor assets could get a judgment creditor's attorney or the sheriff in hot water (non-BK scenario). Maybe this was academic and not practical advice?Seems harsh to require affirmative response by the non-debtor to prove that debtor doesn't own. what if my mom wasn't home when the sheriff came and my brother hid the paperwork. so they auction her home when she's clearly the sole owner by title? That can't be right.... Link to comment Share on other sites More sharing options...
nascar Posted November 7, 2008 Report Share Posted November 7, 2008 That can't be right.... I tend to agree. I'm going to read up on that this weekend. Suppose you have company from out of town and they leave their car parked in the yard for a few days? Doesn't make any sense. Link to comment Share on other sites More sharing options...
jq26 Posted November 7, 2008 Author Report Share Posted November 7, 2008 Thanks and have a good weekend. I'll be looking into this stuff more after I take the MPRE tomorrow morning. Link to comment Share on other sites More sharing options...
Methuss Posted November 7, 2008 Report Share Posted November 7, 2008 Appealing the judgment usually has to be done within 30 days. I don't think he can Vacate because he was properly served and his silence means her stated accusations are considered admitted facts. I think the time for that is over. I'd pay the fee to have a bankruptcy case filed, chapter 7. That puts a total stop on all activity and puts the disposition of assets to the trustee, of which only his car would be listed. The local-yokle sheriff/judge can kiss Federal butt...and the girlfriend gets zippo in the discharge.Since he has no assets to speak of, insufficient earnings to support a garnishment, and probably a credit score lower that a rat's IQ (assuming from current behavior) a few extra years with a BK on record shouldn't be an issue. But for goodness sake enroll him in Financial Peace University or something to get some sense in his head. Link to comment Share on other sites More sharing options...
jq26 Posted November 8, 2008 Author Report Share Posted November 8, 2008 Methuss,I gave him exactly this advice about two hours ago. He also owes Bank of America after he defaulted on a credit card and owes a college for room and board (not a student loan) after he failed to notify the school in time he was dropping out after his first semester. The Chap 7 will erase these debts and allow him to keep the vehicle. fyi- there is no wage garnishment in Pennsylvania except certain cases such as child support. He has gone from a guy I pegged for a minimum of an MBA (skyhigh SATs, successful mortgage loan officer at age 17) to a guy who spends every other month unemployed in the matter of two years. And as far as I'm concerned, other family members are complicit in his irresponsibility. Believe me, I'm working on these things but they take time. Thanks for the advice. If there's anything else that comes to mind (anyone), let me know. Link to comment Share on other sites More sharing options...
Methuss Posted November 8, 2008 Report Share Posted November 8, 2008 ...fyi- there is no wage garnishment in Pennsylvania except certain cases such as child support. ...Thanks for the advice. If there's anything else that comes to mind (anyone), let me know.Oooo. PA allows for seizure of vehicles to cover any judgment or debt with no exemption. Be careful of that. BK will stop that nonsense, but until the notice is in their hands they could have the car on a hook and gone in 20 seconds. I'd walk a copy of the filing notice over to the Sheriff's office just so there is no bull-crud with them. Link to comment Share on other sites More sharing options...
jq26 Posted November 8, 2008 Author Report Share Posted November 8, 2008 PA exemptions are generally a sewing machine, a Bible, $300 cash, and tools of the trade. Pretty stingy. No way to save the car unless he pays in full (not an option) or files for bankruptcy protection (possible). My mother purchased the vehicle but titled it in my bother's name. He still owes her more than the current value of the car (he's making measley payments) but it isn't like she filed a lien on it so its really just considered a gift. If the car gets yanked, she has 0% chance of seeing payments in the future- another reason to fight the seizure and sale. You have to love it. Every other month its something new. Link to comment Share on other sites More sharing options...
jq26 Posted January 14, 2009 Author Report Share Posted January 14, 2009 UPDATE 1/14 & QUESTION:Brother filed Chapter 7 in December and had his 341 hearing last week. No objections to discharge, so just awaiting the papers. Q: He filed Chap 7 AFTER she filed to levy on the vehicle and the sheriff showed up at the house to recover it. There isn't anything mroe he has to do with this thing, correct? The title should now be clear & the judgment worthless? Link to comment Share on other sites More sharing options...
DebtLawRookie Posted January 14, 2009 Report Share Posted January 14, 2009 The filing of the petition under chapter 7 "automatically stays" most collection actions against the debtor or the debtor's property. So they would be in violation of the stay if they seized it. Link to comment Share on other sites More sharing options...
jq26 Posted January 14, 2009 Author Report Share Posted January 14, 2009 Thank you. That part is clear. In fact, the automatic stay is only in effect until discharge. Then the permanent injunction slips in its place. More concerned about this judgment creditor somehow showing up on the title as a lienholder. If they try to pop the car, I'll have him RUN to the federal courthouse and file a motion for sanctions.Also, the judgment is now worthless. I don't want it showing as active on his credit reports. He's only 20 years old. Link to comment Share on other sites More sharing options...
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