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CalAttorney2
CalAttorney2, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 10244
Experience:  I am a civil litigation attorney representing individuals and businesses.
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How do i get money back that was garnished after my motion

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How do i get money back that was garnished after my motion to set aside a default judgment is granted? A default judgment was entered because they served me at a place that I did not live, and didn't know about the judgment until my credit bureau was pulled. For all answers, please just assume that the motion is granted. My motion was pretty general and included no language about a garnishment (mainly because i wasn't being garnished at the time...the judgement was entered on 8/21/13 and i submitted my motion on 8/29/13).

William B. Esq. :

Thank you for using our service. My name is XXXXX XXXXX I would like to assist you today.

William B. Esq. :

I am sorry to learn about this improperly filed suit against you. If the plaintiff has no legitimate judgment against you, they have no right to the collections (assuming this is not a commercial debt, there is no way for this money to be held by the Court either). You may have to make a motion to the court to have the money returned, but the Plaintiff will be required to return the funds.

William B. Esq. :

You can file the motion to be heard at the same time as your motion to set aside the default (if you have sufficient time to file the motion to allow the plaintiff time to file a response prior to your hearing, you can file it even after the motion to set aside has been filed).

Customer:

Unfortunately I just thought of this.. my hearing with the judge is on Tuesday so i'm assuming that is not enough time, since I had to wait 13 days till my motion to set aside even went to the judge for a hearing to be scheduled. Is this something i can bring up in that hearing as well?

Customer:

Also, what motion do i file? Like.. is there a specific name I can search for on google to see examples that others have filed?

William B. Esq. :

Yes - ask for relief at the hearing, this is not a terribly unusual request and the Plaintiff should return these funds - they have no legal basis to keep them. There are situations in which a plaintiff can demand that property be kept during the pendency of a case, but it applies to commercial cases, and the plaintiff is required to place a bond. This does not appear to be the case in your matter. If they do argue that they get to keep the funds, make sure to demand that they provide a legal basis for it, and generally judges are somewhat sympathetic to "pro per" parties (individuals representing themselves) even though they are expected to keep the "same standards as attorneys" particularly on issues such as this.

Customer:

ok, thank you. sorry for all the follow up questions.. I have one last one. When I ask for relief at the hearing, what do I specifically ask for? Just relief? Will they know what i am asking for?

Customer:

is there anything else I should bring when i ask for that?

William B. Esq. :

Yes - just ask for the money back. You do not have to ask for anything special, you do not have to ask for anything in particular. You have already made a motion to set aside the judgment, the garnishment is based entirely on the judgment (if there is no judgment there can be no garnishment).

William B. Esq. :

Keep it simple.

Customer:

Ok, that makes sense. Thank you so much, you just made me feel entirely better about a horrible situation.

William B. Esq. :

You are welcome. I do wish you the best of luck. And I do hope that this matter reaches a positive resolution.

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