No Knowledge of garnishment

What is the name of your state? West Virginia

My husband received his check today on 8/30/02, and he had a garnishment on their for 175.00, we have no idea what this is for, he racked his brain all evening, has no idea, but the question is can anyone take out a garnishment without the person being informed, for who the money is going to or why? We had no idea that he had anything against him, out credit is in good shape, we'll lost I heard they are supposed to send you some kind of papers to let you know about this before hand. help

[nailtech]

you should have had papers served on you on you for a court date,... had the court date for them to receive a judgement against you to get the garnishment.....

hope that helps....

Can they say they sent them, evev though we never received them?

[bigun]

Every state has a procedure for serving someone in "absentia" as it were. He needs to go to the courthouse and pull his file and it will describe how he was served. Then, see if that adheres to state law.

His payroll dept. ought to be able to tell him who filed the garnishment.

[JETX]

If this is a true 'garnishment' deduction, here is how this works:

1) Someone has apparently made a claim that your husband owes money.
2) That person had to have filed a lawsuit against him and obtained a judgment (required in order to get a garnishment order). Your state has specific requirements and processes that must be met to notify the defendant. The only way that you can find out who, why and when is to contact the applicable court and view the casefile (public record). See below for how to find the court.
3) Your state also mandates certain requirements for garnishment, including notification to the judgment debtor (your husband). If they are not done per the rules, the process can be set aside by your taking appropriate action with the court.

What you need to do:
a) Contact the employer and find out why the deduction, and if by garnishment, get a copy of the garnishment papers. These will show the court, case number, who the parties are, etc. With that information, go to the court and view the files. Contact the judgment creditor (also shown in the papers) and try to negotiate a payment plan and ask that he waive his garnishment. He is under NO obligation to do so, but you might try.

Now, for the final 'shoe'.... It is very probable that someone isn't telling you the truth. The entire process of filing a lawsuit, getting a judgment, trying to collect and failing that, filing a garnishment is NOT something that is just done in 'limbo'. There are very specific steps of notification that are required just to get to this point... and even more when you consider that the judgment creditor very probably exhausted all other methods of enforcement and was forced to do the garnishment. Get the facts.... they are out there.

West Virginia

After calling payroll in a different state( Indiana) they faxed the papers to us, and it said who the collector was, well we called them, and they wanted to know if he knew this person, and he said that it was his ex-wife, and that they have been divorced since 1994, the bill was for 1999, at the emergency room at the hospital, not just one but several after, they said if he wanted the money back he would have to collect it from her, or take her to court, then we contacted the court house, and they faxed all the papers to us, and they told us that the collection place was reward the judgement in early May of this year, and that we were served the papers at our address in Indiana in May of 2002, we live in west Viriginia since 1996, now they are avoiding our phone calls, what can we do, we shouldn't have to pay out money for a lawyer, for something that they screwed up on, this is the 2nd time that his ex-wife has done this, what can we do?

[JETX]

Simply, the judgment creditor screwed up and, based solely on the information in your post, HE/SHE is liable for their error. You do NOT have to try to collect from the 'ex', the garnishor MUST correct their error.

Two approaches:
1) Have your husband send the creditor a letter detailing that HE is NOT responsible for this debt and that the creditor has garnished against the wrong person. Also, he violated the state procedures for garnishment by not serving timely notice on you. DEMAND that he remove the garnishment action or you will have the court remove it and he (the creditor) will be liable for all costs incurred (attorney, appearance, etc.) if he fails to remove it. Send your letter certified RRR.

2) Was this a small claims court action?? If so, simply write a VERY detailed letter to the court, spelling out the errors done by the judgment creditor. Respectfully request that the court remove the garnishment and return ALL seized funds, as the garnishment was: (1) placed against the wrong party, (2) not done in accordance with state law (as to notification), (3) done maliciously or with negligence by the creditor not verifying the accuracy PRIOR to garnishment. Request that you be reimbursed for ALL costs and inconvenience caused by the creditors negligence. Send this certified RRR also.

Also, if this was done by a Judgment Enforcement firm, you can contact me directly (at address below) and I will try to help (since I am on several National boards and might know him/her).

[bigun]

In addition to Halket's excellent advice and very generous offer, I'd suggest your husband check his credit report and see if this has been placed on his credit file. If so, you may be able to do more than get your money returned. They violated the Fair Credit Reporting Act as well as, the Fair Debt Collection Pratices Act. Also, the hospital is in hot water as the actions of the debt collector are their responsibility.

[JETX]

Bigun, I don't see any violations of the FCRA or FDCPA. Would you please post what you feel are violations??

[bigun]

Halket,

What is the section in the FDCPA that deals with "misleading or unconscienceable tactics"? As you pointed out, they used the legal system to coerce someone into paying a debt that was not their obligation. If it is on the credit report {a judgment}, they've defamed his credit. And, there is a section in the FDCPA where the orginal creditor is responsible for the actions of the collector.

[JETX]

FDCPA:
This applies only to 3rd party debt collectors and would NOT apply to the judgment creditor (who is the one who did the garnishment). Further, I have to assume that this garnishment against the wrong party was done in error and not intended to be an "unfair or unconscionable means to collect or attempt to collect any debt".

FCRA:
The Act only requires that the CRA (Credit Reporting Agency) maintain accurate records and gives the individual a method to correct errors. There is nothing in the CRA that prohibits a creditor from filing an error... only that it must be corrected upon investigation.

Summary, I doubt that the judgment creditors actions were in violation of the FDCPA or the FCRA.

[bigun]

Halket,

I'm assuming it is a 3rd party. The OP uses the term "collector" and, "collection place". Plus, the shoddy customer service they received when they notified them of the error {not returning phone calls} would seem to indicate it's a collection agency as opposed to a hospital billing office.
In any event, I hope things work out for these folks and again, it is very nice of you to offer to help.

[JETX]

Garnishments cannot be done by 3rd party collectors. They require the judgment holder to file a request with the court... and the court would not recognize a 3rd party (interloper) to the legal process.