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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Business Law
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Hello Mr. Kaplun; I corresponded with you last week in regards

Resolved Question:

Hello Mr. Kaplun;

I corresponded with you last week in regards XXXXX XXXXX Garnishment Summons issued on my wife. She had no part in the LLC, but was served a Garnishment Summons.

I did go down to the Clerk of the Circuit Court here in Augusta County, Virginia, as you suggested, and was told to send a letter to the Judge, which I did.

In the letter (written by my wife) she stated she wanted to contest this Garnishment, and have it withdrawn, that it was unfounded, and that she had no part in the ownership, or membership of the LLC. And that the garnishment was taking money from her that was a debt owed by the LLC, not her. She enclosed a copy of the LLC File, found online at the Virginia State Corporation Commission that shows the LLC was a single member LLC, and that I (the husband) was the only member. As of today we have not received any response. She sent the letter to the Judge, c/o the Circuit Court, as instructed by the Clerk. Although not told to, She did send it Certified, and we have not even received confirmation by return mail, of receipt. It has bee a 1 week now. Is this delay typical? Also Does my wife have any grounds for suit on the Attorney who got the Garnishment against her?

Remember, I am in Virginia.

Thank You, XXXXX XXXXX reply......

Shawn
Submitted: 3 years ago.
Category: Business Law
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your question and thank you for requesting me.

Shawn,

Such a delay is very typical. You may not get a response for up to two weeks, since it may take that long to process all of mailings that the courts tend to get. I do suggest that you contact USPS with your tracking number and review whether or not the mailing was actually sent out.

In terms of filing against the attorney, I do not see grounds. It may be that he argued that since she was an LLC owner, she signed a personal guarantee, or that she was liable as her LLC was her "alter ego". The attorney did not act improperly here, merely very zealously.

Good luck.

Edited by Dimitry Alexander Kaplun on 1/6/2011 at 6:08 PM EST
Dimitry K., Esq., Attorney
Category: Business Law
Satisfied Customers: 38791
Experience: Run my own successful business/contract law practice.
Dimitry K., Esq. and 4 other Business Law Specialists are ready to help you
Customer: replied 3 years ago.

When would the Attorney have argued this? The Garnishment shows a Judgement entered last June. We did not know anything about this. We had moved from our previous address in April. I guess it is possible that a process server left something on the door in May or June, but we were in a new house on May 1st. If this is the case, and there was a proceeding and a judgement was ordered in June........What can we do? I am currently unemployed, and my wife is the only one working. We are barely scraping by, as it is. Now her next paycheck is going to be short. Is there anyway that we can see any transcripts of the Judgement ordered in June? Would this tell us how my Wife was also included in this Judgement? How could any Judgement be ordered against he, since she had no part of the LLC?

 

Sorry for so many questions, but you have been a big help, and it is appreciated.

 

Thanks,

 

Shawn

Customer: replied 3 years ago.

Also......How could an Attorney argue that since she was an LLC owner, she signed a personal guarantee, or that she was liable as her LLC was her "alter ego".....When in fact, she never was an owner/member? Would not the Attorney been required to verify that she had now Membership/Ownership of the LLC before filing suit? Would this not be negligent on the part of the Attorney.......causing great imbarassment to my wife at work? If The Attorney would have checked with the Virginia State Corporation Commission, he would have found out that the LLC was a Single Member LLC, and that her name was not on the LLC.

 

Thanks,

 

Shawn

Customer: replied 3 years ago.

 

Also......How could an Attorney argue that since she was an LLC owner, she signed a personal guarantee, or that she was liable as her LLC was her "alter ego".....When in fact, she never was an owner/member? Would not the Attorney been required to verify that she had now Membership/Ownership of the LLC before filing suit? Would this not be negligent on the part of the Attorney.......causing great embarrassment to my wife at work? If The Attorney would have checked with the Virginia State Corporation Commission, he would have found out that the LLC was a Single Member LLC, and that her name was not on the LLC.

Also......When would the Attorney have argued this? The Garnishment shows a Judgement entered last June. We did not know anything about this. We had moved from our previous address in April. I guess it is possible that a process server left something on the door in May or June, but we were in a new house on May 1st. If this is the case, and there was a proceeding and a judgement was ordered in June........What can we do? I am currently unemployed, and my wife is the only one working. We are barely scraping by, as it is. Now her next paycheck is going to be short. Is there anyway that we can see any transcripts of the Judgement ordered in June? Would this tell us how my Wife was also included in this Judgement? How could any Judgement be ordered against he, since she had no part of the LLC?

 

Sorry for so many questions, but you have been a big help, and it is appreciated.

 

Thanks,

 

Shawn

Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your patience. My extreme apologies on the delay, I was in a long client meeting and was unable to respond until just now.

Let me quickly recap a few issues here. The attorney is free to make any allegations that are reasonable. If your wife failed to respond to those allegations in a timely manner by not filing an answer and by missing the court date, those facts become deemed as incontrovertible by the court, and are considered accurate. In a sense if I, via a complaint, allege that you owed me $100,000 and were an employee of Walmart, if you fail to respond both of those facts will be deemed valid, even if they are not.

While the attorney may have been zealous, if he based his information on good facts (that she worked in the LLC and was highly placed), it would be up to your wife to disprove those facts. That is why it may be wise to consider filing for the "set-aside" of the judgment on claim of lack of service and request an appeal. Before that happens, it would be wise to demand that the garnishment be set aside also due to the judgment possibly being invalid.

Good luck.

Edited by Dimitry Alexander Kaplun on 1/6/2011 at 10:38 PM EST
Dimitry K., Esq., Attorney
Category: Business Law
Satisfied Customers: 38791
Experience: Run my own successful business/contract law practice.
Dimitry K., Esq. and 4 other Business Law Specialists are ready to help you
Customer: replied 3 years ago.

Hello Mr. Kaplun;

 

Last week you responded to another question of mine. Within your answer you stated the following.............

 

"...........That is why it may be wise to consider filing for the "set-aside" of the judgment on claim of lack of service and request an appeal.........."

 

My question is: How do I go about filing for the "set-aside"?

 

Remember I am in Virginia. I guess I could put this question up for a Virginia Attorney on this forum, and I will if you would rather me do that. I just felt more confortable with you, since you already know the background on this.

 

Thanks,

 

Shawn

Expert:  Dimitry K., Esq. replied 3 years ago.
Shawn,

Thank you for your follow-up. To file for a "set-aside" is fairly similar from jurisdiction to jurisdiction. All you need to do is contact your current courthouse that issued the judgment and ask to speak to the county clerk. Explain the situation, state that you are fighting the garnishment based on the fact that you filed for bankruptcy, and you need the petition to file a set-aside of the order. The clerk should be able to provide you with the forms.

Good luck!

Edited by Dimitry Alexander Kaplun on 1/10/2011 at 9:10 PM EST
Customer: replied 3 years ago.

Mr. Kaplun;

 

Thank you for your prompt reply. However, I wanted to bring to your attention, that we are not filing bankruptcy. We are fighting the Garnishment based on the fact that my wife has nothing to do with the LLC.. Remember.........my wife was servied a garnishment summons. The only way this could have happened is that there was a Judgement ordered. I did send a letter asking the court to withdraw the Garnishment based on the fact that she has nothing to do with the LLC, and should not have been Garnished. Anyway, What reason shouold I give them.....Bankruptcy????

 

Thanks,

 

Shawn

 

Expert:  Dimitry K., Esq. replied 3 years ago.
I am sorry, I absolutely misspoke. Kindly ignore my last post in terms of bankruptcy. You are still free to use it as the process is exactly the same--you would just have to request a "set-aside" petition based on lack of standing, that is, that your wife was the wrong party to file suit against since she was not one of the owners.

Again, my apologies.

Edited by Dimitry Alexander Kaplun on 1/10/2011 at 9:33 PM EST
Dimitry K., Esq., Attorney
Category: Business Law
Satisfied Customers: 38791
Experience: Run my own successful business/contract law practice.
Dimitry K., Esq. and 4 other Business Law Specialists are ready to help you

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Run my own successful business/contract law practice.