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socrateaser
socrateaser, Attorney
Category: Business Law
Satisfied Customers: 34170
Experience:  Retired (mostly)
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If I sent over notice to the plaintiffs attorney, in a reasonable

Customer Question

If I sent over notice to the plaintiff's attorney, in a reasonable amount of time in advance, that I was going to the court to file an order to show cause to stay the income execution order and when I go the judge signs the OSC - when presented to my employer does that mean the garnishment must stop immediately?
Submitted: 1 year ago.
Category: Business Law
Expert:  socrateaser replied 1 year ago.
Hello again,

If the court signs the temporary order, then the employer would have to stop garnishing your wages, as soon as it receives notice of the court order. You will have to serve the order on the employer.

Note: I think it fair to mention here that a stay of a wage assignment of child support is practically impossible to obtain, without the recipient parent's express written consent. I don't want you to be disappointed after you spend a lot of time working on this problem, only to have the court give you a flat, "no," to your request.

If you succeed, I will certainly congratulate you -- however, I cannot think of any grounds under which a court would grant your motion -- except perhaps, because you already have a preexisting garnishment order, and your employer has expressly notified you that if you receive a second garnishment, you will be terminated/fired immediately.

Hope this helps.
Customer: replied 1 year ago.

To be clear, the order is an income execution order coming directly from the plaintiff's attorney (no judge signed off on the order nor has it gone through the state); it is completely misreprenting the facts of arrears in what is still the pendente lite period. Why would this be impossible that would mean that any plaintiff attorney can garnish (65%) without a judge looking at it to determine if it's appropritate or not???

Expert:  socrateaser replied 1 year ago.
Okay, that seems reasonable to me. If you are seeking to stay an income execution where there has been no actual determination of arrears by the court, then that would be a valid ground for a stay, at least long enough to establish the amount actually owed, if any.

Hope this helps.
Customer: replied 1 year ago.

In addition, as my employer are not marital law experts they have taken at almost a month to sort this out; they missed the first pay period post 14 days, and have just now moving on this; when sat down last week I let the employee relations person know that I did see a copy of the order in an email attachement with notice threatening me that if I dont act and call them etc. they will be servicing this on my employer... I never received service of the order they sent to my employer (which is a little different than the threatening email order) and my employer never served me with it either - they have just today sent it via email attachement when I mentioned this oversight. The order seems to state the following: the debtor can assert a mistake of fact within (15) days of service of a copy of the execution - also states... payments must begin first pay period (14) days following the service of the with..........which service may be made on the debtor by regular mail ...... - seems to me the onus was on my employer to serve me and they have not; how do you see it as I have not been served


 

Expert:  socrateaser replied 1 year ago.
I believe that this entire process is controlled by 18 NYCRR 347.9. There is no way to directly link to this regulation, but you can reach it through this link.

The regulation does not discuss what happens if the employer fails to serve notice on the employee. However, the presumption is that if you are actually being garnished, then you must know that it's happened. So, if you haven't actually been garnished, or the garnishment occurred, within the notice period, so as to limit you notice of the garnishment, then I believe the court would have equitable authority to extend your time to file a contest over the income execution.

As for recourse, it's wrongful garnishment against the attorney (assuming that this is in fact a wrongful garnishment). If the court were to refuse you the opportunity to contest the garnishment, then you could still ask the court for a determination of arrears, and obtain credit for any overpayments.

I think you may have difficulties holding the employer liable -- though it's not clear in any case law. Ordinarily, negligence does not lie for pure economic injury -- which is what is in play here. However, you may be able to argue that the employer has a special duty, because of its obligations under NY law to not make any unlawful deductions from employee pay. This could be a "rathole," and your employer could make your life miserable, if you start filing legal actions against the employer. Hopefully you can resolve everything with the family court re opposing counsel's alleged errors.

Hope this helps.
Customer: replied 1 year ago.

Yes, I am not going to pursue anything with the employer. I am just going to try to get the stay via my documentation that illustrates all their misrepresentations and present it to them when/if I get a signature. Question: at pre trial in new york, if pro se obviously I will be able to speak, if I had an attorney do I still get to speak or only the lawyers go in the back?

Expert:  socrateaser replied 1 year ago.
If you have a lawyer, you cannot represent yourself at bar. There actually isn't any law or regulation that covers the issue, but it's considered extremely bad form, because it permits a potential argument between a lawyer and his/her client to occur on the record.

Hope this helps.
socrateaser, Attorney
Category: Business Law
Satisfied Customers: 34170
Experience: Retired (mostly)
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