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Slug71

Wage garnishment question

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First, I want to apologize if this is not the correct location for this question. Mods please move this to the relevant location if posted in the wrong place.

 

I believe it was Wednesday or Thursday that my girlfriend got a letter from United Finance stating that they are garnishing her wages. On Thursday or Friday, her HR lady told her that she had received the garnishment papers. My girlfriend went down to the court house on Friday, and was informed that she was served back in August. To both our knowledge, she was never served with anything.

 

The money that they are after is a nine year old loan that does not appear on her online credit reports. She checks CK which it does not appear on, and she has checked her digital CR direct from one of the major CBs. I think it was TU, but it wasnt on there. About a month ago she app'ed for a car loan, and the report they pulled didn't have it. But the sales guy called United Finance to see if they would approve her, they declined and said "bad loan history".

 

That was the first time in 9 years she had since heard of the loan. Right after she took the personal loan out, her roommate had stolen the money along with a US Bank credit card and spent it all. My girlfriend filed a police report and the roommate was arrested. She informed the police that she would like to press charges and was informed that everything would be handled by them. My girlfriend was never advised of nor informed of any further action since. Or at least what I am told.

 

I told her she needs to speak to an attorney and request a copy of the signature from when she was supposedly served. They supposedly sent garnishment or judgment papers to her "previous employer in August, yet my girlfriend has been with the same employer for the past 20 months.

 

She can borrow the money to pay it off and then deal with getting the money back. But I'm not sure if that's a good idea at this point?

 

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13 hours ago, Slug71 said:

Right after she took the personal loan out, her roommate had stolen the money along with a US Bank credit card and spent it all. My girlfriend filed a police report and the roommate was arrested.

Does she still have a copy of that police report?  If not, can she retrieve a copy?

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13 hours ago, Slug71 said:

....

To both our knowledge, she was never served with anything.

....

I told her she needs to speak to an attorney and request a copy of the signature from when she was supposedly served.

....

If she wasn't properly served you should be able to have any judgement dismissed, but if the debt was within SOL the end result may not be any different from where you are now.

 

Was she handed a summons or not?  There is no signature requirement, otherwise everyone would just refuse to sign and use that as a defense.

 

August isn't that long ago that she would have forgotten about a stranger showing up and handing her a notice to appear in court.  

 

Note that there may be other legal ways to properly serve someone where you live. 

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Go to the courthouse and get the file. See what they claim for service. Check your state laws per the SOL. Nine years is a long time. If it is beyond the SOL and they try to sue again, you have a perfect defense and you can sue their lawyer for an FDCPA violation.

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Not being on the report means nothing on ANY claim.  The question, as others have pointed out, is WHAT is in the Clerk's file.  That will have ALL of the relevant information to include where and how service was perfected. 

 

Be aware that getting the judgment set aside does not mean this goes away.  It simply resets to the point of service. 

 

ALSO be aware that you may be confronted with the Doctrine of Laches, and if that is raised, she is going to have to be prepared to testify under oath (either orally or in written form via affidavit) that she NEVER had any knowledge of the debt or judgment.  She will ALSO have the potential option of using Laches in her defense if the original judgment is set aside. 

 

Something that is NOT making sense is the claim that this was the first she had heard since a roommate 'stole' funds associated with the loan.  To the bank, that is irrelevant to the fact that the loan still had to be paid back.  That prosecution of the roommate might have occurred does not do away with the underlying note.  What correspondence does she have with the bank?  What follow-up did she have as it related to the underlying note?  Quite honestly, I don't know that you have been given the WHOLE story...

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18 hours ago, Slug71 said:

Right after she took the personal loan out, her roommate had stolen the money ... and spent it all.

How did this happen?  Did she leave a pile of 20s on the end table and then leave town for the weekend?

 

Regardless, this doesn't cancel her liability to repay the loan.  

31 minutes ago, centex said:

...a roommate 'stole' funds associated with the loan.  To the bank, that is irrelevant to the fact that the loan still had to be paid back.  That prosecution of the roommate might have occurred does not do away with the underlying note.  

 

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Does she still have a copy of that police report?  If not, can she retrieve a copy?
I dont believe she does, she going to get a copy of it though.

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If she wasn't properly served you should be able to have any judgement dismissed, but if the debt was within SOL the end result may not be any different from where you are now.
 
Was she handed a summons or not?  There is no signature requirement, otherwise everyone would just refuse to sign and use that as a defense.
 
August isn't that long ago that she would have forgotten about a stranger showing up and handing her a notice to appear in court.  
 
Note that there may be other legal ways to properly serve someone where you live. 
Exactly. To our knowledge, nothing has come to the house in regards to that debt.

Looks like the SOL in Oregon is 6 years.

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They both worked nights. She thinks the roommate probably stole the cash while she was at work. The money was gone within 24hrs of receiving the loan money.

The roommate's mom and aunt testified against the roommate in court and said she had stole the money. To my knowledge (as told to me), the roommate was ordered to pay back the money.

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Not being on the report means nothing on ANY claim.  The question, as others have pointed out, is WHAT is in the Clerk's file.  That will have ALL of the relevant information to include where and how service was perfected. 
 
Be aware that getting the judgment set aside does not mean this goes away.  It simply resets to the point of service. 
 
ALSO be aware that you may be confronted with the Doctrine of Laches, and if that is raised, she is going to have to be prepared to testify under oath (either orally or in written form via affidavit) that she NEVER had any knowledge of the debt or judgment.  She will ALSO have the potential option of using Laches in her defense if the original judgment is set aside. 
 
Something that is NOT making sense is the claim that this was the first she had heard since a roommate 'stole' funds associated with the loan.  To the bank, that is irrelevant to the fact that the loan still had to be paid back.  That prosecution of the roommate might have occurred does not do away with the underlying note.  What correspondence does she have with the bank?  What follow-up did she have as it related to the underlying note?  Quite honestly, I don't know that you have been given the WHOLE story...
She was 18 at the time, so I doubt she was informed on the follow up actions needed after court.
The gf said the roommate was ordered by the court to repay the money.
Since the gf had not heard anything more on it since 9 years ago, she assumed that it was all taken care of I guess.


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32 minutes ago, Slug71 said:

I dont believe she does, she going to get a copy of it though.

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Well the police report would be proof when the event happened.   The time frame might put it outside the SOL for collecting based on her state laws.   You need some more research.

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She was 18 at the time, so I doubt she was informed on the follow up actions needed after court.
The gf said the roommate was ordered by the court to repay the money.
Since the gf had not heard anything more on it since 9 years ago, she assumed that it was all taken care of I guess.


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The fact that the money was stolen, while unfortunate, has nothing to do with her owning the money. It sounds to me like the statue of limitations argument is one you can win. However, my gut is sensing that she received a judgement a long time ago and the notice of service you are referencing was related to the garnishment. Lawyers doubt usually sue for debts that old. Good luck either way and remember if it turns out the debt is owed try to negotiate a discount/payment plan or consider a chapter 7.

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3 hours ago, MarvBear said:

Well the police report would be proof when the event happened.   The time frame might put it outside the SOL for collecting based on her state laws.   You need some more research.

With the OP describing documents for the garnishment, that suggests strongly that suit occurred long ago.  Judgment lives tend to be measured in decades, not years. 

 

And even in an original proceeding, the theft and offense reports would have done nothing since they do not negate the underlying loan contract.  The restitution in the criminal proceeding would have been to the girlfriend, NOT to the bank.  OP's girlfriend MIGHT have the ability to seek a contempt finding on the non-compliance with the restitution order, but again, it does not preclude the original loan from having been the subject of litigation and subsequent enforcement. 

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Her best bet might be to frustrate the garnishment. I suspect there is a valid judgment that exists, otherwise the HR department wouldn't be taking this seriously.

 

The money being stolen by a roommate is irrelevant to the loan. She took out the loan and then didn't make payments on it. It doesn't matter if the money was stolen later by someone else. Loan still exists.

 

Now if your GF wants to avoid the garnishment, you should look into what the exemptions are in your state. How much money does she earn per month or annually? Many people don't make enough money to even be garnished anything if your income is below a certain amount. 

 

The other way to frustrate a judgment is to change jobs. If her job is easy to change to another employer, that would mess up the other side for now. Then she should avoid filling out any new credit apps with her new employers name so that the info does not show up on her credit files.

 

She can also file a motion to vacate the judgment if she truly never received anything. But to do that she needs to get down to the court and get it filed, mail a copy to the other side and get a hearing scheduled in front of the judge.

 

Those are some ideas based on the limited amount of info provided.

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Many police reports are purged after being closed a certain length of time and 9 years would be in the ball park of my state for misdemeanor and lesser felony crimes.

An arrest, a criminal charging, and a court disposition would be recorded at the State repository level. 

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6 hours ago, insolent1 said:

Many police reports are purged after being closed a certain length of time and 9 years would be in the ball park of my state for misdemeanor and lesser felony crimes.

An arrest, a criminal charging, and a court disposition would be recorded at the State repository level. 

This will be jurisdiction dependent...concur about records retentions practices for law enforcement agencies.  However, court records are often kept with the District Clerk.  I'm still pulling lots of useful information in my State from each of the 254 Counties by going through the Clerk, even on cases from the late 60's and early 70's. 

 

The should have the Complaint/Information and/or Indictment and may even have the original Affidavit for Warrant of Arrest or Detention in addition to the S&J rendered by the Court.

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Thanks for all the info guys.
Shes not trying to get out of the debt. Just trying to see what her options are since this took her by surprise. I'm sure she will most likely have to sue the roommate in small claims to, but I doubt that will yield any good results.
Just wanted to see what her options are, and where to start to tackle this. The garnishment is for 25% of here wages and will be about $400 a month. Which we really cant afford.

Some really good info here though, despite the limited info provided. But that's all we have from the little notice and the debt being 9 years old. Thanks again.

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Small claims? If it's that old it's beyond any SOL for debt of anything else you can think of. Did you get the file from the court yet as we suggested? If she wan't properly served, the whole thing goes away and cannot be refiled. The rest of this stuff becomes moot.

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Small claims? If it's that old it's beyond any SOL for debt of anything else you can think of. Did you get the file from the court yet as we suggested? If she wan't properly served, the whole thing goes away and cannot be refiled. The rest of this stuff becomes moot.
Ughh didnt even think of that.
Shes going down to get all the paperwork she can tomorrow. Friday is the only day she gets off work early enough to have a window to do all that.

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