07-17-2009, 12:46 PM
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Junior Member
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Join Date: Jul 2009
Posts: 22
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Originally Posted by taxgirl
The guy owes 10K. The credit card company gives him a phone number to call, it's a legal firm that does their collections. They put him under a payment plan. HE offers to settle the debt while in negotiations for around 8K, they REFUSE (what a bunch of idiots, I would have taken the money and closed the account); meanwhile, while he's making payments to the collection/attorney office, his brother gets served with papers for my tax client to appear in court for this account.
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A payment plan after default wouldn't amount to a contract prohibiting a lawsuit unless the plan was agreed upon for that purpose specifically. If the payment plan was agreed upon simply because money was owed, then the lawsuit was probably proper.
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HE doesn't get served, his brother doesn't know what to do with the papers, he's not even at the same house, so the client never gets the papers, never shows up in court, gets a default judgment in the amount of $25K!!!!!.
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Process is properly served if left with an adult family member at the defendant's house. So, depending on the specifics of the situation, your client may have been properly served. If he was not properly served, then your client can certainly move the court to have the judgment set aside.
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Then, in February, they start garnishments to the tune of $2500 per month; I didn't get the paperwork until last month, so I helped him file with the court an objection to the calculation of exempt wages. My argument is this, he has a court order ordering child support, health, dental, vision insurance that should have been included in the calculation. The third party payroll service is refusing to acknowledge the court order because it is not a GARNISHMENT ORDER FROM CHILD FAMILY SERVICES. I say it is still a court order (a lawful order) and it should be included in the calculation for determining the total amount of exempt wages that can be subject to the 25% garnishment rule.
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Only disposable earnings may be garnished. Disposable earnings are basically all earnings that are not legally required to be withheld by one's employer. If child support/insurance is not withheld by your client's employer, and instead is paid by him after receiving his paycheck, then those costs cannot be subtracted from his disposable earnings. If his wages are garnished to pay the child support/insurance, then those costs should be subtracted from your client's disposable earnings.
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Another thing, the judge answered the objection with "garnishment objection was not answered within the five day period (in February), so the objection was denied in part, he said we could go ahead and file the objection again on August 8 (is there something about the six month period if it's a continuing garnishment?);
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The garnishment has to be renewed every 180 days (6 months), so your client can object again at each renewal. However, if your client can show the court good cause, he can dispute the exemptions at any time.
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I am filing a motion with the client on August 8 to have the judgment vacated, could I do that right now? This garnishment is going to cause this person to go into foreclosure on his home this month, and I think it's a bunch of bs, he should have been allowed a hearing based on his objection even if it was late, it's still an emergency. All comments welcome, we are in Colorado
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I would file the motion immediately if I were your client.
Also, be careful about how much legal work you're doing for your client. You could find yourself being accused of the unauthorized practice of law, and it's possible that you could even be liable for advising your client incorrectly.
Hope all that helps! 
Last edited by John Smith : 07-17-2009 at 02:36 PM.
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