     Steve Jones | Thursday, January 06, 2000 - 11:24 am 
Can a collection agency place a garnisment on my paycheck.
The agency is threatning to get a judgement and garnis my check.
1. How do you prevent a garnishment, Can't you block that with the court.
Thanks
Steve |
| Sean | Thursday, January 06, 2000 - 11:42 am
Once a collection agency has a judgement it's not difficult to begin garnishing wages. Your goal should be to prevent the judgement. Is the debt valid? If so, why haven't you paid it?
There are a variety of defenses that can be employed to block a judgement. No defense is a guaranteed success. Most judgements are gained by default where the creditor sues and the debtor never even shows. |
| voigtkampff | Thursday, January 06, 2000 - 01:49 pm
I agree with Sean. Of course there are also defenses to the garnishment itself. But that varies from state to state. In Florida there is a 20 day period for either the garnishee (your employer) or you to assert a defense to the writ of garnishment. Even if the garnishment occurs, there is a federally determined limit on the amount garnished. |
| Anonymous | Sunday, January 09, 2000 - 08:48 am
This won't help you much unless you live in Texas. It is prohibited in the state's constituion that your wages CAN NOT be garnished except for a very few exceptions like child support or the IRS. General creditors are out of luck. The only thing to watch out for is that if a creditor does locate a bank account that you put your wages in, they CAN garnish the BANK ACCOUNT. In otherwords, don't put money in a direct depost account if there is a judgement |
| Gary | Sunday, January 09, 2000 - 11:36 am
Steve, the federal government is very strict on what can be deducted from a payroll check, and a collection agency can't touch it without a court judgement. What is a judgement? They have to sue you. They will file a Complaint, and you have 20 days to answer the Complaint. You must file your answer with the court it is filed in, and send two copies to the people that sued you. How old is the debt? Check the statue of limitaions on the debt in your state. I'm assuming this is a federal debt (credit card from another state), go to the law library and read the Federal Rules of Civil Procedure. In your Answer, deny everything. Then you have to have a meeting with the party that sued you, the Plaintiff. Then you will conduct Discovery, file motions and maybe get a court date in two years. This will cost anyone that sues you about 10,000 for the attorney that does it for them. It will cost you nothing but the time and money for the papers you file. Debt collection agencies are not in the business to spend that kind of money on every debt they try to collect. You have several choses, work out payment arrangments to your liking not theirs, file bankruptcy, or if you're sue proof, ignore them, unless they take you to court. |
| RICHARD JAMES | Friday, January 14, 2000 - 07:34 am
HOW FAR CAN THE CREDIT CARD COMPANIES GO TO COLLECT UNPAID BALANCES BEYOND CHARGING OFF THE DEBT?? |
| voigtkampff | Sunday, January 16, 2000 - 06:57 am
Richard, you're asking for something which will produce a huge answer. I politely suggest that you read some of the other posts which have already addressed this in detail, and see if you have questions about judgments; garnishments, judgment liens and other executions on those judgments; and practical/legal effects of credit reporting. Even if one of the experts does not respond to that post (which they usually do), I suspect that one of the neophytes will do so to practice and experiment with what they have learned here, subject to any corrections by the more experienced. |
| Sean | Monday, January 17, 2000 - 06:47 am
As a legal matter there is a lot that a credit card company can do to compel payment. Their first line of offense is likely to be reporting you negatively on your credit profile and referring your matter to a collection agency.
Conceivably you could be sued and a judgement could be obtained. From there they might begin to garnish your wages, attach your assets or have money sucked out of your bank accounts involuntarily.
As a practical matter this rarely happens because, for many debts, the cost involved in all of this does not justify the money returned. If, however, you owe a substantial amount to one creditor they may take this route. |
| Anonymous | Wednesday, January 19, 2000 - 10:03 am
I would go one step further - if the amount in question is below your state's small claims court threshold, the creditor may simply have a lawyer take you to small claims court (no jury, just a judge - kinda like The People's Court or Judge Judy).
If that happens, prepare (via internet, CD software, public library, or low-cost para-legal service) a motion to kick the suit into superior court (where you get jury, discovery, etc.). This is a motion that the small claims court judge HAS TO GRANT. Then, 5 minutes before your small claims court meeting, show the creditor your motion and tell him that you will kick his suit to superior court where the legal costs will run into the tens of thousands of dollars for him. THEN, offer a token settlement on the condition that he remove any and all information from all credit bureaus. Chances are 50/50 he will take it. If he doesn't, file your motion and tell him you'll see him in court in 2 years. |
| voigtkampff | Wednesday, January 19, 2000 - 07:17 pm
I see alot of people get upset when they don't get the delays that they expected. I had someone call me yesterday on a foreclosure matter because they only have 24 hours to get out of the house that they have lived in (and stored stuff in) for the last 10 years. Where are my delays? I demand delays!! It's kind of ironic that people complain about efficiency.
So many people feel ripped off when an eviction takes only a month, instead of the several months that they expected. I see the same thing in chapter 13 bankruptcies. Changes in the local rules here result in chapter 13s getting dismissed within 2 months.
I don't know how things are run in all states. We don't even have "superior court" here in Florida. But while a person can probably move a matter from small claims to county court, it would not cost anywhere near $10,000 to prosecute a typical action at that level. I know because I see the attorneys fees billed after completion of those actions.
Forum shopping is not permitted with complete abandon. Though there may be tricks that I am not aware of. Every court has jurisdiction over certain matters. The jurisdiction can be concurrent (shared) as with the small claims and superior court in the above example. But it can also be exclusive - where only one court has juridiction to hear the matter. Otherwise, I could threaten to take any matter against me up to the DCA or the Florida Supreme COurt, so that it would cost the creditor money to pursue it.
It's an interesting suggestion, but I suspect that it has limited applicability. Depends on that state's definition of jurisdiction. |
| Sean | Thursday, January 20, 2000 - 08:55 am
It's the same way here in California. The municipal and superior courts were recently combined to save costs. There's no superior court to kick it upstairs to.
Not to say you can't get some delays by changes of venue, such as having the location of the hearing moves to the seat of county government but there is a limitation to how much you can do. It is especially hard to effectively combat a holder-in-due-course because they have a preferred legal position.
I know of a gentleman who was facing foreclosure who filed bankruptcy. After about six weeks the bankruptcy was dismissed -- he had already done a chapter 7 just 4 years ago. He immediately refiled getting another automatic stay of actions. It was dismissed four weeks later and he refiled. The bank's attorney got it dismissed just 2 days later and got a restraining order preventing him from filing again. Sometimes things can move a lot faster than you think. |
| Anonymous | Thursday, January 20, 2000 - 09:56 am
Let me clarify my previous posting: You have the right to a jury trial and to be represented by counsel (and thus avail yourself to the rules of evidence, discovery, etc.) ANY TIME YOU ARE SUED. If you did not have this right, you could sue Bill Gates and compell him to represent himself in small claims court and not use his vast fortune to hire any lawyers to represent him. You can NEVER be compelled to litigate a matter in small claims court.
That having been said, you can indeed "run up his legals" by the creative use of depositions, discovery motions, etc. If you know of a lawyer who would represent you in a lawsuit and not charge you by the hour for having to deal with all of this, please let me know. An added benefit is that, since you are the defendent representing yourself, it will not cost you 200-300 /hour to sit in a deposition while you nitpick for 8-12 hours over a single issue.
I stand by my original statement that a judge HAS TO GRANT your motion to kick the case out of small claims and into superior (or whatever your local jurisdiction calls it). It is then open season on how long you can delay it. Heck, how many motions can you file for a continuance
before a judge compells you to trial? |
| voigtkampff | Thursday, January 20, 2000 - 05:05 pm
Answer: Where I am, the bnk trial judge allows ONE (1) continuance of the pre-trial before setting it down for trial week. After that, it would take a darn good reason.
There is a glut of attorneys. Supply and demand. They are not as expensive as you think. There is a limit to creativity. Few attorneys want to commit professional suicide by having this judge remember them as the moron who files frivolous motions and pleadings. All we have is our reputations. To pay me to destroy my reputation, you would have to pay me enough to relocate my practice.
Judges have busy dockets. They don't want them continued. They want them resolved. Yesterday. Not all judges are stupid. They've seen it before. They know what you are doing. I know that the federal judges are a little more strict, but I've done a little in state court. And my roommate practices there. I've seen attorneys sanctioned. I've been paid 3 times by attorneys who were a little too frivolous for the judge. I read about one local attorney who got arrested for improper attire (in the judge's opinion). It is not quite as much of a joke as you feel it is. "Open season" is a little too strong of a statement. |
| Anonymous | Friday, January 21, 2000 - 06:49 am
Let me clarify - you would be representing yourself and filing the discover motions, etc. He (the creditor) would be paying his attorney by the hour.
In the real world, most creditors (really collection agencies who bought the debt for a few cents on the dollar at this point), probably bought a bunch of debts and negotiated a flat fee with an attorney to sue the whole bunch. Both the attorney and the credit are banking on 1 quick small-claims hearing and a quick judgement. Neither are prepared for the expense of a lengthy trial. I guarantee you that the attorney will tell the collection agency that if they want to fight, it will cost them a minimum of $ 10,000 - $ 20,000 in expenses and billable hours. And even, in the end, if you lose and they win, they have another piece of paper that says you owe them. If they try to attach a judgement, THEN you file BK. I promise you the attorney will recommend they take 10 cents on the dollar now and get on with their lives.
Voig - you are a lawyer - If I gave you a collection account for, let's say, $ 5,000, and told you to take the debtor to small claims court to get a judgement, and 5 minutes before the hearing the debtor said he would request a change of venue to county/superior court and was looking forward to playing the "discovery" game and making it last as long as possible, then even if he lost, he would file bk, and offers $ 500.00 cash now, what would you recommend to me to do? And how much more would you charge me for a full trial vs 1 apperance in small claims court? |
| voigtkampff | Monday, January 24, 2000 - 06:20 am
Your reasoning is sound. I disagree only with the numbers. And with the likelihood that all judges will allow this. I don't practice the type of law that you address, but I see what other attorneys charge when I discharge their fees. I see full blown foreclosures, with title searches, subordinations, etc. for $2,000 to $3,000 in fees. There are a lot of parties (co-defendants, counter-plaintiffs, etc) in these foreclosures who are not only filing frivolous motions, but who are also filing meaningful affirmative defenses and counter-claims. I rarely see fees as high as you suggest except for divorce actions, when they get manifold higher. So, let me just say that I sort of agree, but it depends. I've never personally tried it. |
