Wage garnishment non compliance 2

[Kenman21577]

Upstate NY here.

An income execution order was sent to my previous employer due to a defaulted student loan. He withdrew the appropriate amount from my bi-weekly payroll check every pay period for about a year and a half, totalling a little over $8000. I worked for him for almost two years after the loan was paid off, approximately 5 years ago. I received notice from a collection agency for the US Department of Education last week stating that my current balance on the loan was $9800. I called the collection agency and they informed me that my previous employer had not paid $4200 of the $8000 original balance, and that the payments he made were irregular at that, i.e. two periods of time where 4 consecutive bi-weekly payments were made, followed by two larger lump sum payments with large gaps of time in between. I remember him showing me the original garnishment order, and I recall it saying that non-compliance with the order would result in him being liable for the balance. So the questions I have are as follows:

Who is responsible for enforcing compliance of the order?
Do I have any legal recourse against my previous employer, and if so, would it be a civil suit or through a government agency?
Do I have any defense against the collection agency for not notifying me that my employer had failed to comply until five years after the fact?
Since my previous employer was a small business and I did not receive payroll checks, how do I gain access to his cancelled checks, where the deduction amount was denoted on the memo line?

 

[adjusterjack]

Who is responsible for enforcing compliance of the order?

You. You're the one in the hot seat. You're the one that has to resolve it.

Do I have any legal recourse against my previous employer,

Yes.

and if so, would it be a civil suit or through a government agency?

Civil suit.

Do I have any defense against the collection agency for not notifying me that my employer had failed to comply until five years after the fact?

No.

You should have been following up every payment to make sure it got where it was going.

Since my previous employer was a small business and I did not receive payroll checks, how do I gain access to his cancelled checks, where the deduction amount was denoted on the memo line?

You probably don't. Small claims courts generally don't allow discovery where you can demand documents from the other party although you might be able to obtain consent from the court to do so.

However, if you sue for the $4200 the collection agency may be able to provide all the documents you need to prove your case.

Just understand that you seeking indemnification from your former employer doesn't relieve you of the obligation of paying to the creditor what hasn't been paid and you might find yourself facing another wage garnishment.

 

[Kenman21577]

Jack, thanks for the info, which basically confirms my worst fears. It seems to me a pretty messed up concept, though, that a person, rather than an entity, would be responsible for the the enforcement of a court order. I find it equally as ridiculous to expect that any employee could force their employer to comply, and wonder by what means, the employee is expected to accomplish this task. Considering your answers , the statement on the original garnishment worksheet sent to my employer that the creditor is responsible for enforcement of said order is clearly misleading at best, if not a complete fabrication.

 

[adjusterjack]

Jack, thanks for the info, which basically confirms my worst fears. It seems to me a pretty messed up concept, though, that a person, rather than an entity, would be responsible for the the enforcement of a court order.

You aren't responsible for enforcing the order. You are responsible for seeking redress if you are wronged.

I find it equally as ridiculous to expect that any employee could force their employer to comply, and wonder by what means, the employee is expected to accomplish this task.

Simple.

By checking with the creditor each week to make sure that the money was received and credited to the debt. The first time you found that it wasn't you would have been able to take whatever action would have been appropriate to resolve the issue.

Considering your answers , the statement on the original garnishment worksheet sent to my employer that the creditor is responsible for enforcement of said order is clearly misleading at best, if not a complete fabrication.

No. The creditor has a right to enforce the garnishment for his own benefit, not the obligation to do so and certainly not for your benefit.

All that being said, I did think of another possibility. It occurs to me that criminal prosecution for embezzlement or misappropriation of funds may be available. I'm just not sure that the authorities would be interested after all this time but it's worth a contact with your local prosecutor's office.

That wouldn't eliminate the need for a lawsuit, though.

 

[Kenman21577]

Good new for me, I think, is that I found a federal statute in the Department of Education's Rules and Regulations Handbook that specifically states that if no payments are remitted by the employer enforcing the garnishment for twelve consecutive months, then the collection action against the original debtor at that point must be terminated. First glimmer of hope, I think.