Garnishing - contrary to what was worked out

[Lesa13]

I had an old bill that went to court earlier this week. I talked with the creditor attorney's office before the court date and they told me "get caught up or ahead and we'll just go to the hearing and dismiss our motion to lift the stay". They have already cashed the check I sent them. Now I see on the court records that as of today a garnishment was issued to my employer.

Not only does this infuriate me because it is not warranted (I am actually paid 2 months AHEAD of our agreement), but they will be getting a pay off from my parents later this week and were informed of that as well before the court date when they called to find a final pay off number.

My question is, how long does it take for these garnishment orders to hit my employer's accounting department? Again, the docket report indicates that a garnishment was issued today, 1/29.

My big fear is that my parents are going to pay this off this week, the garnishment will still be in place and money that I cannot afford will be taken from my paycheck, so they will get double paid and I will never get anything back from the creditor's attorney (who is not the most up front fellow I've ever met).

Any advice?

[treehugger1]

It is unlikely you will get the garnishment stopped. You said someone is going to pay off your debt, so can you ask them to pay you instead, and offer your paycheck receipt as evidence the debt has been paid down?

On another note, did you attend the initial court hearing? While hind-sight is 20-20, never ignore a court summons if you fear a garnishment.

In the meantime, you will probably see your wages garnished. Given the creditor's attorney seems "untrustworthy," the last thing you want to do is "double" any payment.

[treehugger1]

I want to add for others... Never under-estimate a CA or creditor. If you have an agreement, show up to court; small claims or other. Many judges will honor an "expressed" agreement if you can show you were holding up your end. Most creditor or CA atorneys know that debtors seldom show up for a hearing. In these days of debts moving toward collections, CA's and Creditors will attempt to stand in line first, no matter what "unwritten" agreement you may have with them.

[Lesa13]

I had paid the attorney BEFORE the court hearing. When I talked to their office I was told there was "no need to appear", all the attorney would be doing would be dismissing the motion (he had a bunch of motions and cases on that particular docket that day, not just me).

I am not sure if this garnishment thing will be served immediately - ie, my employer will get within a week or so or what?

I did leave a rather irate message with the attorney's office this evening saying (a) you cashed my check and you knew you had the money and everything was more than caught up and (b) you told me not to appear at the hearing and that the motion would be dismissed and now I see that there is a garnishment executed.

I have also emailed my employer payroll department letting them know there is something funky so I guess it's possible they may not "automatically" just do it. Also, the garnishment is for the full amount of the original debt which has been gradually being paid off since last August - so that's incorrect as well.

Just very frustrated - I have been in very close communication with the attorney's office for the past few weeks and am shocked that this somehow happened. Originally we had worked out a "deal" and they did what they said - this time either they knowingly did not or (perhaps ) a mistake was made.

[jp2861]

I wouldn't pay them a dime until the garnishment is lifted. Have your parents hold off with the payment. Or like someone else said, have your parents give you the money. If the garnishment goes through replace the amount with what your parents give you, until the garnishment issue is dealt with. That's about all you can do until the lawyer stops the garnishment.

[FreshLikeADaisy]

Lesa, depending on what state you are in you can execute a Claim of Exemption, which is a response to the garnishment that says, "yeah, but according to state law only x% of my income is garnishable," and that is a way to cut down or even prevent actual wages being taken even when the creditor has executed a Writ of Garnishment. Most every state has a similar process, but it varies. Chances are very good that there is a process you can go through yourself, along with forms and what to do with them, and not need an attorney.

Now, the above is the complete extent of my knowledge of the subject, my apologies. But if I were in your shoes, I would google "claim of exemption florida" (or whatever state, without the quotes) and you should quickly get a lot of info. Look especially at info that comes from state or govt sites, because that's where you'll find the best information and not just ads for attorneys that specialize in it. If you come up empty, try googling "writ of garnishment florida" or other terms along the same lines instead. Good luck!!!

[Lesa13]

Thanks all

Atty's office told me today that the "court" "made a mistake" and ran the garnishment through when their motion to lift the stay was denied. Apparently it is common practice to include a garnishment with a motion to lift the stay. Even though the motion was denied "somehow" the garnishment got run through. The atty's paralegal told me she had written a letter to the court, sheriff and my employer's payroll department to tell them it was a mistake. We'll see what happens!

Another reason NOT to trust lawyers!!

[treehugger1]

On the other hand, if this was an honest mistake, you have to give them (plaintiff attorney) credit.

[FreshLikeADaisy]

I dunno, Treehugger. It seems as though it is very much in the plaintiff's best interest to get this worked out before getting hit with contempt for violating the automatic stay -- and that's only the beginning, I suppose, if somebody really wanted to make a big deal out of it. I had no idea Lesa was in bk and had already filed -- my apologies.

[Lesa13]

What I was told was that since this bill was outside the BK, the automatic stay inside the BK didn't really apply. Even though the original bill/creditor IS inside the BK and I begged this place to just amend the original claim, they wouldn't do so. It's quite a scene with these creditors, as I'm sure everyone is aware

Another thing about these attorneys is that they really don't want to do any paperwork. For instance, I was supposed to pay them at $75 a month. I get no billing statement, nothing. Just send them a check every month. I've kept track of what I've paid but when I asked for a pay off number from them earlier, what they gave me seemed awfully high and they gave me no backup information. I asked for some type of statement showing what was paid each month, this is the total now, etc.. They were very upset I asked for such a thing and did not have anything like that. They would have to "pull it together."

I told them, look, I have paid you and I don't think it's too much to ask to get some type of statement of account to see where you are getting your pay off number from. We sent them about 85% of the total pay off number they said I owed (me thinking that what I sent would probably cover it all, really) and they were angry about that. I said, well just send that check on back then if you don't want it. But until you send me a statement of the entire history of my account with you, I'm not sending you any more.

It's just amazing to me. I can only really feel bad for those who have a lot more debt than I do and have had to deal with people like these on bills more than the measly $1,200 I owe these yahoos.

Again, thanks for all the help on this. One thing for sure is you have to really keep on top of things and people. You can't trust they will do the "normal" common sense rational thing.

[Catia]

If you are under automatic stay-and this creditor is included in BK-and the debt is antecedent (old) would this be considered a preferential transfer? If so, trustee can avoid it (reverse it back to estate).
I'm not an atty, far from it! --but I was just reading in depth this morning about what constitutes a preferential transfer--definition is in section 547b. Sect 547e defines when a preferential transfer occurs.
"preferences" are transfers of a debtors property to a creditor, or to benefit a creditor, for pymt of a prior debt, WHICH RESULTED IN THE CREDITOR GETTING MORE THAN THAT CREDITOR WOULD HAVE RECEIVED IN A CH 7 BK IF THE PROPERTY HAD NOT BEEN TRANSFERRED. The transfer must occur when the DEBTOR IS INSOLVENT, and generally within 90 days, including the 90th day before filing, 1 year for insider transfers.

IMHO, basically, this is exactly what BK courts are supposed to protect you from rigght??? money grabbing/asset stealing--all creditors are supposed to be treated equally

**But, preferential transfers of less than $600 will not usually be avoided by the trustee.
Certainly do not have your parents pay anything until you get this straightened out and have proper documentation--even "IF" it was an "Honest Mistake"...Cover your butt!
This stuff is downright scary at times, and I too have seen more than 1 attorney not pay proper attention to their cases, but then again, that when I was a bartender LOL, which is exactly why I have a general distrust for them!

[FreshLikeADaisy]

Catia, that's true -- and a great point!!! -- but Lesa may be in a Ch13, which is a whole 'nother story.

I bet you have some great stories from being a bartender.

[Catia]

Preferential transfers also apply to ch13 bk--that is why it states what it states-(see the quote in my post above)-to be sure no creditior receives pymt for more than they would if someone were in ch7-meaning all creditors get equal treatment, which is the trustees duty-this is the criteria they use--as far as I understand. For instance-they would do a table, as if she were in ch7-if the creditor is receiving more $$ than they would if her assets were in ch7 liquidation, it is grounds for preferential transfer--it means this creditor is grabbing assets (cash)that do not lawfully belong top them, and that means other creditor of equal status may get less--that's what preferential transfer is about I think. check out 547b, it's not too hard of a read. AFAIK--'preferentail transfer" applies to all forms of BK--not just ch7 and 13, but all the others as well.

[aachudneymiles]

I had an old bill that went to court earlier this week. I talked with the creditor attorney's office before the court date and they told me "get caught up or ahead and we'll just go to the hearing and dismiss our motion to lift the stay". They have already cashed the check I sent them. Now I see on the court records that as of today a garnishment was issued to my employer.

Not only does this infuriate me because it is not warranted (I am actually paid 2 months AHEAD of our agreement), but they will be getting a pay off from my parents later this week and were informed of that as well before the court date when they called to find a final pay off number.

My question is, how long does it take for these garnishment orders to hit my employer's accounting department? Again, the docket report indicates that a garnishment was issued today, 1/29.

My big fear is that my parents are going to pay this off this week, the garnishment will still be in place and money that I cannot afford will be taken from my paycheck, so they will get double paid and I will never get anything back from the creditor's attorney (who is not the most up front fellow I've ever met).

Any advice?

always get everything in writing

[FreshLikeADaisy]

Preferential transfers also apply to ch13 bk--that is why it states what it states-(see the quote in my post above)-to be sure no creditior receives pymt for more than they would if someone were in ch7-meaning all creditors get equal treatment, which is the trustees duty-this is the criteria they use--as far as I understand. For instance-they would do a table, as if she were in ch7-if the creditor is receiving more $$ than they would if her assets were in ch7 liquidation, it is grounds for preferential transfer--it means this creditor is grabbing assets (cash)that do not lawfully belong top them, and that means other creditor of equal status may get less--that's what preferential transfer is about I think. check out 547b, it's not too hard of a read. AFAIK--'preferentail transfer" applies to all forms of BK--not just ch7 and 13, but all the others as well.

Catia, thanks for the correction! I didn't think preferential transfers had anything to do with a 13, only a 7. It's good information to know. Thanks again!