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Quick-ASAP Stop to Garnishment....if possible


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Here's the "skinny" to this:  Got an email from my HR on Friday last,.."James we were served with an order to attach 25% of your wages..." They (the creditor/collection agency/Law firm) are getting 3 garnishments effective 7 Aug, 22 Aug and 7 Sept, they have a hearing date of 6 Sept set. 

 

This garnishment is going to HURT big time, I pay over $1k in child support, have a high rent to pay, just can't do this.

 

This "judgment" was dated Dec 2004.  NINE YEARS almost and not ONE SINGLE shred of correspondence from this company, called THE FINANCE COMPANY.  I barely remember this.  From what I can recall, I think this has to do with a vehicle I had, did a voluntary repo on as was "told" that it would be auction and that "there shouldn't be any remaining balance left on it, if there was, they would contact me about payment arrangements..."  Like I said, IF this is that debt, I GOT ZERO, ZILCH, NADA."

 

Now, OUTTA nowhere, I get this EMAIL, and NOTHING at my last prior address nor this new address we live at. They served the garnishment order at my employer (Reston, VA) but nothing at my door or in my mail (Spotsylvania, VA)

 

What can I do TODAY, TOMORROW to stop this thing???? I hear/read things like Motion to Vacate. Motion to Re-Open the Case and Set Aside Default Judgment.  What can I do?

 

By the way, wanted to know if in this electronic/digital age can I do this (possibly file a motion) in another district court? I am NO WHERE  NEAR the court where the judgment was filed (Virginia Beach District Court). Hell, the LAW FIRM is in Baltimore, MD?!?!?!?

 

Do I need to waste my time even trying to file a motion(s)?

 

I gotta try to stop this garnishment.

 

Please help if possible, ALL advice given will be read and taken to heart.  YOU GUYS are the experts.

 

thanks

 

James C.

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I just got a similar notice from my work, My hearing is early October and they want to start garnishing NOW. I thought they couldn't do it until the hearing... With a baby on the way due around the same time as the hearing, i need time to get my stuff in order and prepared... I will be following this to see what everyone says. The Code of Virginia reads like stereo instructions and i am lost as to where to start.

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Hey,

 

I'm sure someone on the forum from Virginia will chime in.  In the meantime, THIS you CAN do:

 

Ask for a copy of the court order from the Virginia county court clerk where the garnishment was approved.  At least ask the clerk if he or she will tell you the highlights.  You need to use this order to review the particulars involved with the garnishment.

 

Check the statute of limitations on debt collection for Virginia. Creditors cannot garnish wages if the statute of limitations has expired on a delinquent debt -- beginning when the alleged debt first became delinquent, NOT when the alleged account was opened. In Virginia, credit card delinquencies have a statute of limitations of three years, written contracts are five years and other domestic debts (mortgages) are 20 years.

 

Submit a Motion to Vacate if the statute of limitations has expired on your alleged debt. Depending on the alleged amount owed, call a local attorney licensed to practice in Virginia.  He or she can possibly file this motion electornically -- or file something else that will stop the garnishment process immediately.  Once the dust settles, you can likely go online to look up the case.  If it's over $5k, I can poke around in Pacer for you to find out what's going on.  Just PM me.

 

Under NO circumstance can they garnish: Social Security or disability (SSI) payments, veteran's payments, military annuities, student assistance payments, and many other federal payments. If all of your income consists of exempt payments, you can halt the garnishment.

 

Good luck!

-J

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I know bankruptcy isn't a popular option, but either a Chapter 7 or a Chapter 13 filing would stop garnishment dead in its tracks. If your pass the means test for you State,  have very little in assets and/or are ok with possibly losing some property (which you may not lose after all), Chapter 7 is probably a  better option. If you have a higher income, and/or valuable possessions, then Chapter 13 may work for you. Bankruptcy isn't an easy call and it isn't for everyone, but it would sure stop the wage garnishment very quickly. As soon as you file your bankruptcy petition, the automatic stay goes into effect and all collection, lawsuits and garnishments must cease.

 

I guess bankruptcy may be a total overkill if this is your only debt, but I thought I'd at least mention it as one of the options. Other than that, I've heard of motions to vacate judgment in theory, but have never written one, and don't know how effective they are. Never hurts to try. Maybe you could at least lawyer-up for your garnishment hearing. If you can prove that your expenses are very high, they might not be allowed to garnish the full amount allowed by Law. Don't know what the max is in Virginia, but here in California, creditors can take up to 25% off of your paycheck, which is pretty nasty :-(

 

Good luck to you.

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I know bankruptcy isn't a popular option, but either a Chapter 7 or a Chapter 13 filing would stop garnishment dead in its tracks. If your pass the means test for you State,  have very little in assets and/or are ok with possibly losing some property (which you may not lose after all), Chapter 7 is probably a  better option. If you have a higher income, and/or valuable possessions, then Chapter 13 may work for you. Bankruptcy isn't an easy call and it isn't for everyone, but it would sure stop the wage garnishment very quickly. As soon as you file your bankruptcy petition, the automatic stay goes into effect and all collection, lawsuits and garnishments must cease.

 

I guess bankruptcy may be a total overkill if this is your only debt, but I thought I'd at least mention it as one of the options. Other than that, I've heard of motions to vacate judgment in theory, but have never written one, and don't know how effective they are. Never hurts to try. Maybe you could at least lawyer-up for your garnishment hearing. If you can prove that your expenses are very high, they might not be allowed to garnish the full amount allowed by Law. Don't know what the max is in Virginia, but here in California, creditors can take up to 25% off of your paycheck, which is pretty nasty :(

 

Good luck to you.

 

Do I have a leg to stand on regarding statute of limitations here in VA?  Below is what I pulled off of the Commonwealth of Virginia website for statute of limitations on debt...am I reading it right?  Does it essentially say that after 5 years actions against me to collect a debt are closed?  Does it even apply in the case of a judgment?

 

 

§ 8.01-246. Personal actions based on contracts.

Subject to the provisions of § 8.01-243 regarding injuries to person and property and of § 8.01-245 regarding the application of limitations to fiduciaries, and their bonds, actions founded upon a contract, other than actions on a judgment or decree, shall be brought within the following number of years next after the cause of action shall have accrued:

1. In actions or upon a recognizance, except recognizance of bail in a civil suit, within ten years; and in actions or motions upon a recognizance of bail in a civil suit, within three years, omitting from the computation of such three years such time as the right to sue out such execution shall have been suspended by injunction, supersedeas or other process;

2. In actions on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not;

3. In actions by a partner against another for settlement of the partnership account or in actions upon accounts concerning the trade of merchandise between merchant and merchant, their factors, or servants, within five years from the cessation of the dealings in which they are interested together;

4. In actions upon any unwritten contract, express or implied, within three years.

Provided that as to any action to which § 8.2-725 of the Uniform Commercial Code is applicable, that section shall be controlling except that in products liability actions for injury to person and for injury to property, other than the property subject to contract, the limitation prescribed in § 8.01-243 shall apply. § 8.01-246. Personal actions based on contracts.

Subject to the provisions of § 8.01-243 regarding injuries to person and property and of § 8.01-245 regarding the application of limitations to fiduciaries, and their bonds, actions founded upon a contract, other than actions on a judgment or decree, shall be brought within the following number of years next after the cause of action shall have accrued:

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This "judgment" was dated Dec 2004.  NINE YEARS almost and not ONE SINGLE shred of correspondence from this company, called THE FINANCE COMPANY.  I barely remember this.  From what I can recall, I think this has to do with a vehicle I had, did a voluntary repo on as was "told" that it would be auction and that "there shouldn't be any remaining balance left on it, if there was, they would contact me about payment arrangements..."  Like I said, IF this is that debt, I GOT ZERO, ZILCH, NADA."

 

Now, OUTTA nowhere, I get this EMAIL, and NOTHING at my last prior address nor this new address we live at. They served the garnishment order at my employer (Reston, VA) but nothing at my door or in my mail (Spotsylvania, VA)

 

I would concur with HotWheels96. Looks like those people must have sued you and won, so checking the Court records is a good idea. A lot of Courts these days have searchable online records, so it's worth finding out if your local Court does. I know very little about laws in VA. Have you tried posting your question on Avvo.com? Chances are you will get a few local Attorneys that will chime in with some ideas. Most Lawyers give free consultations these days, so you may check out 2-3 and then see if anyone can help. The Attorney might also be able to find out if that company committed any Fair Debt Collection violations. Their mode of operation sounds fishy, and you may be able to sue them.

 

Do you know if there is a Law Library in your area? If you're lucky to have one (I'd think that may be likely considering your proximity to the DC area), the staff can be very helpful and can refer you to the state Laws you're looking into.

 

Just some general ideas here. Wish I could be more helpful :-(

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If you were never served, and they did sewer service, you have one year from the time you find out about the judgements in most states. I guess it would depend on if the judge believes you or not. Go to the court and get a paper to file a motion to vacate judgement. Also make an affidavit that says you swear you were never served in this case. Have it notarized. Then file it with the court. The worst that could happen is they deny it. The sol will be tolled most likely, I don't know if it would be like there never was one, but if they were to refile after a vacated judgement, or if the judge just makes a stay, then they have to produce the contract, and all the required letters they should have sent you.

1. A letter telling you the pay off balance, and so many days before they will not let you get it out of default. 2. A letter telling you they are selling the vehicle, when and where that sell will be, and 3. How much they sold it for, their expenses, and what you still owe. If they didnt do that, they should not be able to win.

This is how it goes in several states, your rules may be different, and you would need to read your statutes. Read them on repositions, and also read the rules for civil procedure on judgements like I told you above. Good luck.

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If you were never served, and they did sewer service, you have one year from the time you find out about the judgements in most states. I guess it would depend on if the judge believes you or not. Go to the court and get a paper to file a motion to vacate judgement. Also make an affidavit that says you swear you were never served in this case. Have it notarized. Then file it with the court. The worst that could happen is they deny it. The sol will be tolled most likely, I don't know if it would be like there never was one, but if they were to refile after a vacated judgement, or if the judge just makes a stay, then they have to produce the contract, and all the required letters they should have sent you.

1. A letter telling you the pay off balance, and so many days before they will not let you get it out of default. 2. A letter telling you they are selling the vehicle, when and where that sell will be, and 3. How much they sold it for, their expenses, and what you still owe. If they didnt do that, they should not be able to win.

This is how it goes in several states, your rules may be different, and you would need to read your statutes. Read them on repositions, and also read the rules for civil procedure on judgements like I told you above. Good luck.

 

ALL the POSTS on this forum are ABSOLUTELY phenomenal.  So here is more pertinent info:

 

  • The clerk of the GDC in Va Beach says there..."was a judgment hearing on 21 Dec 2004 and since I did not show up, a default judgment was entered against me for the plaintiff, The Finance Company".  OK...sounds plausible to me except for this one nagging problem....(insert crickets chirping)...I NEVER received anything, any correspondence, never was served with the smallest piece of paper that said I was being sued or summoned or any kind of notice that this "company" wanted x-amount of dollars and I had to appear in court!!!!!  So, naturally I didn't show because I didnt know and I didn't KNOW because I wasnt served.  Yes, it's NICE to know they had my correct address at the time....but what happened PRIOR TO THE COURT DATE????  Nothing!!! Surely they had to have calculated the remaining balance left on the vehicle after it was auctioned and determined that I still owed money, and surely they would want that money...so why not TELL ME so I could have made arrangements to do so???? 

 

  • There is a hearing set for 6 Sept where the plaintiff is only required to show up to (clerk says I don't need to be there)..."receive the sum of the payments/garnishments accumulated".  The first of the three they have ordered executes on 7 Aug, then 22 Aug and finally on 7 Sept.  They state at that point in time "it will be determined whether further garnishments are necessary to collect the total owed."

 

  • The clerk of the GDC also said I could fill out the Request for Hearing - Excemption Claim form that was attached to the Garnishment Summons/Notice that was recently sent to my employer but I never got a copy of that either. she said I could use that form to claim "Financial Hardship caused by the Garnishment but none of the choices seem to support that issue, the ONLY choice that seems close is labeled (conveniently) OTHER (describe exemption). I was told once I send this in, they will get me a court hearing date in 7-10days, (and before the 6th of Sept) Any suggestions here?

 

flash forward to present day...NOW they want their INTEREST (majority of the total amount they want is accumulated interest)...and once again, I received NO summons but my employer did.  Oh, the clerk of the GDC told me they "mailed a copy of the summons to the last current address they had on me", havent lived there in over a year.

 

anyhoo, I downloaded a copy of the Motion to Set-Aside (Vacate) Judgment from my state GDC website.  There is a field on the form that gives me four choices to "click in the box"  two of the choices I know dont apply but I wanted to ask about the other two and determine WHICH, if either of them, applies to me and I want to know WHAT I SHOULD TYPE/SAY???  the choices are:

 

"____ A Fraud on the court.  It has been two years or less since the date of the judgment or decree"

"____ A void judgment."

 

 

then there is an empty text box that I assume I should type into  and it is prefaced with this sentence:

 

"This motion is based on the following facts and reasons"   SO, I have to guess this is where I lean on you the experts to assist me in WHAT I should type into this box.

 

And it looks like your take on the SOL for debts in Virginia is different when it comes to judgments, according to the Code of Virginia 8.01-251 ©

 

 

Sorry to be so longwinded.

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