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Andrea, Esq.
Andrea, Esq., Attorney
Category: Legal
Satisfied Customers: 11782
Experience:  25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
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I received a writ of garnishment after judgment - civil by

Customer Question

I received a writ of garnishment after judgment - civil by mail and my bank account is frozen.
I went online and look up the case and the status is
the writ of garnishment after judgment is pending.
The debt owe is a result of a foreclosure on my home.
I don't agree with the amount of the debt since they
sold the house and probably filed a loss with their
income tax. I sent a word document to the court stating that I request to remove the writ of garnishment
because I am contesting the amount owe or if I owe anything. Please provide me with some help.
Submitted: 4 years ago.
Category: Legal
Expert:  Andrea, Esq. replied 4 years ago.

Good Evening,

 

In whose favor is the writ of garnishment ?

 

How much is the judgment for which the garnishment was issued ?

 

Who are you referring to when you stated that "they" sold the house and probably took it off as a loss on their income tax ?

Customer: replied 4 years ago.

I think it is in my favor if I read the answer from the garnishee (my Bank) correct.

My bank said in the answer that they have a lien on the money in my account because

I have a loan at the bank.

 

$7329.60

 

The mortgage company that foreclose on my house and the

attorney I assume they hired to come after me. They have since sold

the house and I figure they count what they loss in mortgage payment as a

loss of their income tax.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Expert:  Andrea, Esq. replied 4 years ago.

A garnishment cannot be issued in favor of the debtor

 

When I asked "In whose favor" is the garnishment, I meant is it in favor of the lender who foreclosed on the mortgage

 

If it is the mortgage lender who had the writ of garnishment issued, that would make your bank the "garnishee"; the mortgage lender can, in fact, go after their borrower (you) if the house was sold for less than the balance left in the mortgage loan.

 

____________________________________________________________________________

 

 

That is the only way I get paid

 

If you have questions in the future, please feel free to ask for me by typing my name at the beginning of your question

 

 

Leaving Positive Feedback, Bonus, etc. is always appreciated

__________________________________________________________________________

 

Thank you for allowing me to assist you and Good Luck!

 

ANDREA, JD, LLM

Member, NY & PA Bar

 

Customer: replied 4 years ago.

Ok, I see what you are saying about who is in favor of the writ of garnishment.

That don't mean that they can win.

I know they can go after me if the house was sold for less.

But my original question was how to get the writ of garnishment remove from

my bank account.

Expert:  Andrea, Esq. replied 4 years ago.

What you want to do is contest the garnishment and you need a hearing for that. Sending a letter or email to the Court is not enough and I'm sorry if the Court Clerks led you to believe it could be done that way.

 

You have to file a Motion to contest the writ and it should probably be entitled Motion to Vacate Writ of Garnishment. At the hearing you will state your position as you had done in the Motion and then the lender will answer. That would be the only way

 

_______________________________________________________________________________

 

 

That is the only way I get paid

 

If you have questions in the future, please feel free to ask for me by typing my name at the beginning of your question

 

 

Leaving Positive Feedback, Bonus, etc. is always appreciated

__________________________________________________________________________

 

Thank you for allowing me to assist you and Good Luck!

 

ANDREA, JD, LLM

Member, NY & PA Bar

 

Customer: replied 4 years ago.
Do you have any forms or examples that I could use to file an motion.
Expert:  Andrea, Esq. replied 4 years ago.

If I had them, I'd be happy to give them to you, but I don't think they have forms for these because unlike some areas, each Motion has its own unique facts that have to be stated. If you go to the Court Clerk's office and ask to see any litigation file, you can get an idea of the format, at least. The Clerk should give you these without any problem because they are all a matter of public record.

 

______________________________________________________________________________

 

 

 

 

That is the only way I get paid

 

If you have questions in the future, please feel free to ask for me by typing my name at the beginning of your question

 

 

Leaving Positive Feedback, Bonus, etc. is always appreciated

__________________________________________________________________________

 

Thank you for allowing me to assist you and Good Luck!

 

ANDREA, JD, LLM

Member, NY & PA Bar

Andrea, Esq., Attorney
Category: Legal
Satisfied Customers: 11782
Experience: 25 yrs. experience in family law, estates, real estate, business law, criminal defense, immigration, and employment law.
Andrea, Esq. and 17 other Legal Specialists are ready to help you
Customer: replied 4 years ago.

How long do I have to file a motion to vacate writ of garnishment.

What can I state in the motion to vacate writ of garnishment.

Can you provide me with the proper steps on how to file this motion.

Expert:  Andrea, Esq. replied 4 years ago.

Did you file an Answer when the lender served you with the Complaint - the pleading that started the foreclosure action?

 

ANDREA

Customer: replied 4 years ago.
Yes, the clerk said she received my answer on 1/8/10.
Expert:  Andrea, Esq. replied 4 years ago.

The timing doesn't sound right. If you filed an answer on January 8, 2010, it would be almost impossible for the lender to get a judgment, conclude the action in mortgage foreclosure, have the house put on the Sheriff's list and have the house sold, and all done within 30 days. You must have been served with the Complaint in Mortgage Foreclosure some time late last year, 2009. When were you served with the Complaint by the lender ?

 

Keep in mind that since you would be the one filing the motion, and you will allege that the lender took it off their tax return as a loss, you will have the burden of proof

 

ANDREA

Customer: replied 4 years ago.

The house was sold for $ 189,900 on 2/05/2007.

I had two mortgage loans on the house. (First loan of 180,000 and Second 45,000)

When they sold the house that took care of the first loan and some money left over.

A debt collector acquired the second loan and is now the current owner.

This debt collection agency has assigned a lawyer to come after me

for the original principle amount in the second loan. The debt collection agency recovered a Default Judgment against me and said judgment was signed on

January 31, 2008 by the judge.

I hired a lawyer to handle the case. He told he was going to try to settle for $10,000

with monthly payment of $50 or $100 dollars.

I know they had disagreements early on but I thought they would work it out.

Time passed and the next thing I know my bank accounts were frozen on 1/2/2010.

Which bring the writ of garnishment against my bank account now that I am

trying to remove. Hope this clear things up a little. If you need more info

let me know.

 

 

Expert:  Andrea, Esq. replied 4 years ago.

Let me give you the steps before and after a foreclosure action so that you can understand why the sequence of events does not make sense

 

Assume Mortgagor (Owner of house/Debtor) gave 1st & 2nd mortgage

 

  • 1. Mortgagor can't afford to pay for house anymore
  • 2. Stops making monthly mortgage payments to lender/Bank -the 1st mortgagee and B, the 2nd Mortgagee
  • 3. Bank (1st Mortgagee) sends debtor a Notice of Default
  • 4. Debtor still can't pay

•5. Lender/Bank files a Complaint in Mortgage Foreclosure in Court Clerk's Office, say, 12/1/2008

  • 6. Lender serves copy of Complaint in Mortgage Foreclosure on debtor same day - 12/1/2008

 

(Rules of Civil Procedure give Debtor 20 days to file Answer with Court & Serve it on Lender)

 

•7. Debtor must file his Answer to Complaint (denying he owes lender) by 12/21/2008, then serve it on Lender

•8. Debtor does not file or serve Answer to Complaint on lender

•9. Lender gets default judgment entered against Defendant

•10. Lender takes certified copy of Judgment to Sheriff and says "Put it on your list for the next sale

•11. Lender gives notice of sale to 2nd Mortgagee

•12. Sheriff puts it on the list and sells the house about 3 months later, on 3/10/2009

•13. Debtor files Answer a year later, on 3/1/2010 and serves it on Lender

 

What has happened?

 

•1. Debtor did not file Answer to Complaint by 12/21/2008, (No. 8, above ), So, Lender got Default Judgment

 

•2. By virtue of default judgment against Debtor (No. 9, above), Lender became owner of house and Debtor lost any rights he had in the house

 

•3. Sheriff's Sale of 3/10/2009 wiped out 2nd Mortgage (Rule: Sale by 1st Mortgagee wipes out all junior liens)

 

•4. Debtor's Answer to Lender's Complaint filed one year after sale is meaningless - No effect on anything

 

Q. When did the debt collector acquire title to the house ?

 

Q. From whom did debt collector buy it? Did he bid at Sheriff's Sale ?

 

Customer: replied 4 years ago.

The debt collector acquire the second loan from Lender to become the current owner I assume sometime before 12/27/06 because that's when they sent me the letter dated 12/27/06 to notified me that they are the new owner of the second loan to the house

and proceeded with the collection process to collect the debt from me.

 

Lender sold the house on 2/7/2007 to satisfy the first loan and was out of the picture.

Debt collector perform all the legal process (without Lender) to collect the debt since they purchase the second loan from the Lender.

 

Which now has led up to the writ of garnishment place on my bank account on 1/2/2010 by the debt collector for the second loan.

 

Expert:  Andrea, Esq. replied 4 years ago.

For what purpose did you file an answer on January 8, 2010 to the original lender's Complaint in Mortgage foreclosure since the house had been sole 3 years before, February 5, 2007?

 

If the collection people bought the 2nd mortgage loan in 2006, before the foreclosure sale of the orininal lender, that means their 2nd mortgage position was was wiped out when the lender foreclosed, it's the law The only way the collection people could have preserved their lien of a second mortgage was if they bid on your house at the Sheriff's sale and they had actually bought the house. If it happened any other way, their 2nd mortgage lien would have been erased and if that is the case, they should not be asking you for any money because their motgage lien disappeared as a result of the foreclosure by the 1st mortgagee.

 

_________________________________________________________________________________

 

 

That is the only way I get paid

 

If you have questions in the future, please feel free to ask for me by typing my name at the beginning of your question

 

 

Leaving Positive Feedback, Bonus, etc. is always appreciated

___________________________________________________________________________

ANDREA, JD, LLM

Member, NY & PA Bar

 

Customer: replied 4 years ago.

I don't think we are on the same page so I had to do some research to answer your questions.

Let me summarize some of the events.

 

Oct 31, 2006 - Lender reject my option: Deed in Lieu of Foreclosure and sent my case to Loss Mitagation.

 

Dec 27, 2006 - Receive letter from debt collector saying that they acquired the second loan and is now the current owner.

 

Feb 5, 2007 - Comparative Market Analysis shows house was sold.

I know the Lender hired an real estate firm to sell the house.

 

Aug 17, 2007 - Receive letter from debt collector saying the Promissory Note was assigned to them with past due balance of $3698.80 (10 months).

 

Sept 19, 2007 - Receive letter from debt collector asking for balance ($4068.68) in 30 days or they will accelerate the Note and file suit to collect the outstanding balance.

 

Oct 24, 2007 - Receive letter from debt collector saying you have been sued. If your attorney don't answer in 20 days a default judgment may be taken against you.

 

Nov 11, 2007 - I hired an attorney to handle the case. Attorney said he will try to settle for $10,000 but apparently the debt collector didn't agree.

 

Feb 5, 2008 - Debt collector recovered a Default Judgment against me.

 

June 17, 2008 - Receive letter from debt collector for

1 - Notice of Intention to take Oral Deposition in Aid of Judgment

2 - Request for Production or Inspection of Documents

3 - Interrogatories in Aid of Judgment

I went and gave him every document he requested for which the documents would explain why I am in a state of financial hardship. Gave him my attorney number to call to discuss.

 

Aug 28, 2008 - Received Writ of Execution from debt collector

 

Jan 2, 2010 - Received Writ of Garnishment after Judgment - Civil from debt collector.

 

Jan 8, 2010 - File answer with district court

 

Since then I have been trying to read up on how to defend my case since I can't afford a lawyer with my bank account being frozen (not to mention all of those returned checks)

I don't think the debt collector could have bought the house since they sent me a letter dated Dec 27, 2006 saying that they have acquired the second note and the house wasn't sold until Feb 5, 2007. Could I just put that in my motion without having any evidence to prove that the second loan should be wiped out. I'm not sure what all goes in a motion (settlement offer,contest loan amount,financial hardship package. etc...) or could I just file motion to vacate writ of garnishment based on second loan should be wiped out per law no.

 

Expert:  Andrea, Esq. replied 4 years ago.

You see, I put you on the same page

 

File a Motion alleging that they:

1. Received assignment of second mortgage before first mortgagee foreclosed on the first mortgage;

 

2. First mortgagee foreclosed on the first mortgage after (Name of collection Co.)

took assignment of the second mortgage;

 

3. Where first mortgagee gives proper notice to all junior lienholders of intent to foreclose and thereafter forecloses on the first mortgage, the liens of all junior lienholders are wiped out by the mortgage foreclosure

 

4. The lien of the second mortgage held by (Name of collection Co) , was wiped out by the aforesaid mortgage foreclosure action by the first mortgagee

 

Don't mention that you think the house was sold, or how much it was sold for, etc. Just focus on their lien represented by a second mortgage was wiped out by the mortgage foreclosure action of the first mortgagee

 

If you hired a lawyer to represent you when the second mortgagee filed suit against you and the lawyer allowed a default judgment to be entered against you because he failed to file an answer withing the time he was supposed to, you have a malpractice cause of action against the lawyer. He should never have allowed that to happen

 

___________________________________________________________________________

 

Kindly press "ACCEPT" so that I get credit for assisting you

 

That is the only way I get paid for my time and effort

____________________________________________________________________________

 

ANDREA, JD, LLM

Member, NY & PA Bar

Customer: replied 4 years ago.

I'm finished with my motion to dissolve writ of garnishment.

Do I need to include Certificate of Service and Verification.

If how do I word it.

Expert:  Andrea, Esq. replied 4 years ago.

The site informed me that this must be treated as a new question because the questions were no longer for clarification of the answer, but rather went into different issues; also it is against policy for a customer to keep a question window open in order to continue to ask questions for the same deposit because it is not fair to other customers who adhere to the site's policy to open a different window for a different question and it is not fair to the expert who gives complete explanations of the entire procedure from start to finish but receives only 19 dollars as payment where it would have cost the customer at least $900 if he had gone to the attorney's office. I do not want to get in trouble with the site and I hope you can understand my position. Please let me know if you want to continue this as a new question

 

Customer: replied 3 years ago.

I now have unlimited subscription to Just Answer. Your last answer was that the

second mortgage was wiped out by the aforesaid mortgage foreclosure action by the first mortgagee and I filed my motion based on that.

My motion to quash garnishment was denied because there was no case law to

support my opinion. I am appealing the Judge decision to deny my motion to

quash garnishment.

My question: What do I state in my appeal and what documents do I need to include.

 

Expert:  Andrea, Esq. replied 3 years ago.
I am going to respectfully opt out of your question because I will be going offline shortly, so your question will be open to other experts who can assist you,


Thank you

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