Debt Collection: How do I set aside a garnishment order?
December 30, 2014 - Categories: Legal Articles
If the debt collector attempts to garnish your wages, then your employer must give you a copy of the garnishment order, which then will have more details about the money judgment order that ordered you to pay the creditor a certain amount of money.
Once you have the garnishment order, it will be important to get a copy of the money judgment order from that court, if you don't already have one.
If the garnishment order is based on an actual money judgment order that is against you, even if that money judgment should never have been issued against you, then it is a valid garnishment order. Your employer must comply.
If the money judgment order is against someone else, then you can show that to your employer, and they can refuse to take money from your account.
However, if the money judgment is against you, then you cannot dispute the garnishment order. Instead, you must determine if the underlying money judgment was legally obtained against you.
For example, if you were never notified properly (personal service) of the court actions or hearings that led to the money judgment against you, then you can file a motion to set aside the default judgment with that original court.
In the motion, you must show that:
1) you had a good faith reason for not answering the original complaint against you (such as that you were never served notice), and
2) that you have a "meritorious defense," i.e. that even had you had the opportunity to fight against the action originally, that you would have a good defense against the complaint (such as they improperly calculated the amount of the debt, or you owed the debt to someone else, not the Plaintiff, or you didn't owe that debt at all).
You will file the motion to set aside, get a court date from the court, and serve notice of the hearing and motion to the other side. Then, at the court hearing, you can argue why the original judgment against you should be set aside.
Note: you must file your motion to set aside the default judgment within 21 days of finding out and getting the information about the default judgment against you. For example, if you found out today that there was a garnishment order being issued against you, and you found out tomorrow what the case number was, and then next week you finally were able to obtain a copy of the default judgment and the underlying complaint, then from that day of getting the actual complaint and judgment, you have 21 days to file a motion to set aside default judgment.
If you need additional advice, please contact our office and schedule a free phone consultation. 855-437-3704