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Court order was wrong!


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I went to court to get the garnishment stopped and negotiate a payment plan.  After some haggling I hammered out an agreed upon monthly payment with stipulations that the wage garnishment would stop immediately.  The JDB atty wrote the court order I read it, the judge read it and agreed and that was that.

 

On my next check I realized that the garnishment was still continuing.  I sent a letter to the JDB asking to stop garnishment and return garnished wages. 

I recieved a reply:

the court order stipulates that all garnishments should be released to the "plantiff" immediately.  the JDB informed me I was the defendant and they were the plantiff and that now I owe them an extra monthly payment that the court order states.

What is my next move to make this right? And can I get my garnished wages back?

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Can you post the text of the stipulation? If it's clearly a clerical error and the JDB is using it to cash in in a windfall, you could very likely have a FDCPA claim against them for false/misleading representations and/or unfair debt collection practices.

In the interim, I would file a motion with the trial court to correct the clerical error nunc pro tunc and ask for expedited relief on the grounds that the plaintiff is abusing the clerical error to force you into immediate financial hardship. I'd attach a copy of their response just so their actions are unequivocally on the record.

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The JDB atty wrote the court order

 

That was your first mistake.  They wrote it favorable to them not you.

 

the court order stipulates that all garnishments should be released to the "plantiff" immediately.  the JDB informed me I was the defendant and they were the plantiff and that now I owe them an extra monthly payment that the court order states.

What is my next move to make this right? And can I get my garnished wages back?

 

You need to read what you signed.  I have never seen garnished wages for a debt returned unless bankruptcy is filed (and even then they get handed over to the trustee) or if there is a homestead or state exemption.  Even then they typically garnish all of the debt then return it to payroll and ultimately to the employee.

 

If the court order stipulates that all garnished wages go to the Plaintiff then you are done.  You will not get those wages back and you still need to make the payments you agreed to.

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So I just read your first post again.

Are you saying a payment was released to them or that you have to make an extra payment amount every month? If is the former, are they crediting your account for the amount of the extra payment?

If it's just one extra payment (the one that was set aside by your employer) and they are deducting that amount from your balance, you're not really losing anything in the long run and you get the debt paid off a month early.

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@Clydesmom

It was a stipulated order. They could make it say whatever they wanted.

 

I know that. Hence the reason I stated:

 

That was your first mistake.  They wrote it favorable to them not you.

 

Of course they worded the stipulation to state that any garnished money would be handed over to them.  The OP simply assumed they would return the garnished wages and take the smaller payments and did not carefully read the stipulation.

 

I have NO clue why you choose to cherry pick a certain comment then spin what I said but you really need to stop.

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Harry, you were right!

I went to the court clerk and explained the situation to her. Apparently the wording "garnishment shall be released to plantiff" means that the wages previously collected will stay with the plantiff. But, under Michigan law, when a monthly payment plan has been agreed to then all garnishments are to cease immediately.

The clerk made it sound as though the plantiff should have known that and that I am able to collect back those wages collected since the court order.

The clerk also intimated that I may have a claim against them for unfair collections.

So Harry, since your the only one that got it right, what is the process for making that claim and what could be the outcome?

thanks for the help!

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I think the pivotal point is going to be the timing of the withheld wages and what Michigan law has to say about the issue. Just because a court clerk says something doesn't make it fact so I'd spend a couple hours doing some research or call a local consumer rights lawyer. If you have an FDCPA claim the lawyer might take the case on contingency.

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BV80/Harry

I went to court and it was actually kind of funny. I am waiting for my turn when the JDB counsel showed up and fortunately it was the same woman who handled it the first time. First let me say this was an interesting atty. After some initial talk she admitted to me that she felt sorry for me and hated being an atty and spent her time writing a novel and doing these cases were to pay the bills.

I explained to her why I was back, that the JDB was still garnishing. The atty looked at the original order, asked to see my proof of collection and said "well that is stupid, they (the JDB) should have known to stop garnishing. Someone in the office must not have read the order very carefully". After some more explanation and what I was after (return of garnished wages less monthly payment) she immediately tried contacting the JDB. After numerous calls and voicemails she told me that there wasn't anything she could defend because the JDB would not call her back, so I knew at that point, as long as the JDB didn't call, I won!

After waiting a little more and talking more, I started talking about the book she was writing and I casually asked if she thought I had good FDCPA claim? She just smiled and said she couldn't defend it! I will be contacting a consumer atty ASAP!

I want to thank both of you for giving me the "chance" of hope that I was right! The lesson is, you can't hit the ball if you don't take a swing!!

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  • 4 weeks later...

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