Surprise Levies and Garnishments
It can be quite a shock to look at your bank account and see that funds are missing or frozen, or find out from your employer that someone is legally taking money out of your paycheck. What’s worse is when you have no idea who the person taking the money is or why they are taking it.
In order for a party to obtain a wage garnishment order or an order for a levy, that party must go through several steps. Further, you, as the defendant, are supposed to be notified and given the opportunity to object or oppose the claim. However, things don’t always go as planned or as they should.
- The proper process is as follows:
- Letter / Calls by Plaintiff to Defendant attempting to resolve the debt without litigation (optional)
- Lawsuit (Complaint) filed by Plaintiff
- Summons Issued by Court
- Complaint and Summons served on Defendant
- Defendant has 30 days to respond to lawsuit
- If Defendant fails to respond, then Plaintiff can ask the court issue a default against Defendant
- Plaintiff puts their evidence before a judge and judge issues a judgment
- Plaintiff asks the court for a writ of execution
- Plaintiff sends writ of execution to Bank or Employer
The biggest issue here is whether or not you, as a defendant, were properly served. This is where you need to do some investigation to see if any roommates were possibly served or if perhaps you were served and took no action. Get the proof of service from the court and se what Plaintiff told the court about serving you. If the proof of service is a lie, time to bring your argument to the court.
If you were never served, you can ask the court to undue the judgment based on lack of service. This is called a “Motion to Set Aside a Judgment” or a “Motion to Vacate the Judgment”.
It is important to note that asking the court to undue the judgment does not stop the levy or lien automatically, unless and until you prevail on your request. In the meantime, if the levy or garnishment is financially burdensome (usually always) then you will need to file a Claim of Exemption to try and reduce or stop the levy or garnishment. Claims of Exemption are addressed in another blog: How to File a Claim of Exemption.