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Barrister
Barrister, Attorney
Category: Legal
Satisfied Customers: 33796
Experience:  15 yrs practice, Civil, Criminal, Domestic, Realtor, Landlord 26 yrs
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I am sort of freaking out. We just received a "Declaration,

Customer Question

Hello,
I am sort of freaking out. We just received a "Declaration for Garnishment", a "Writ of Garnishment for Continuing lien of Earnings", an an "exemption claim form" in the mail today. We had fought this company back in 2010 with an answer to their judgement as we did not owe this to the company, nor could they prove it. We have heard NOTHING since, and now we have this...I don't know what to do. Can you help me? We have never been in a mess like this and don't know how to respond.
Hoping you can help. :)
Submitted: 1 year ago.
Category: Legal
Expert:  Barrister replied 1 year ago.

Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.

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When you say that you filed an Answer, that would have been to a lawsuit that they had brought against you..

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Was there ever any trial where you showed up and defended the case or did you just file the Answer and that was the last you heard of it?

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Or did you file an Answer once you were informed that a judgment had been granted against you?

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Did you have an attorney representing you when you filed your Answer?

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Are you employed or are you retired?

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thanks

Barrister

Customer: replied 1 year ago.
Hello :) Back in 2010 I filed an answer to them wanting a judgement against me, and never heard from them or the court again, until now. But with the "Garnishment" forms. I did not have an attorney represent me, just did some research and responded. I am sort of employed with a VERY small stipend per month (less than $100), but my husband, who is also listed is employed.
Customer: replied 1 year ago.
To clarify, there was never any hearing, just responded to filed documentation.
Expert:  Barrister replied 1 year ago.

Ok, here is the way this works.. If they filed a lawsuit against you, then you would have a limited amount of time to file an Answer to their complaint, usually either 20 or 30 days. If you file an Answer in that time, then the plaintiff would file to set the case for a trial in front of a judge and/or jury to try and win and get a judgment against you. If you didn't respond in time by filing your Answer, then they can file for a default judgment and would win whatever they asked for against you as damages..

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So the fact that they have now filed for a Writ of Garnishment means that they got a judgment against you for whatever the debt was that they were asking for. If you never went to court and had a trial, that means that something went wrong with your Answer or it wasn't received in time, and they got a default judgment against you. You can only file for a Writ if you get a judgment.

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At this point, they are asking the court to issue an order allowing them to come after any non-exempt earnings to pay towards the judgment until paid.

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If they got a default judgment and you were never notified about any court date for a trial, and you filed your Answer timely, then you would have grounds to file a motion to have the default judgment vacated because of a violation of your procedural due process rights to notice of any trial so you could appear and defend.

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But you say that they wanted a judgment and then you filed your Answer. This would mean that you never responded to their complaint in the first place and the 20 or 30 days expired and then they filed a motion for a default judgment against you and it was granted by the court.

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The exemption form you received is for you to complete if your income is exempt under law from garnishment (i.e. retirement income) and you have to fill that out and claim any exemptions or the court will allow the creditor to garnish any income up to 25%.

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thanks

Barrister

Customer: replied 1 year ago.
According to the documents, I answered and responded (filed in person at the court)within the time frame and that was 5 years ago. I have never seen anything else from them......until today. If they filed another judgement, we were never aware of this, nor received ANY paperwork stating that. Is there anything I can do to keep them from garnishing our wages? It is a matter of principle, as we DO NOT owe this, but I would rather pay it in payments than go through this nightmare. What is the best way to approach this situation, to avoid them taking our wages?
Customer: replied 1 year ago.
Also, wouldn't I be given some sort of paperwork stating that I had a judgement against me? Nothing on my credit report and nothing sent to us. This is why I am so perplexed and no idea what to do or how to respond. I appreciate your help.
Expert:  Barrister replied 1 year ago.

Ok, then somehow they got a judgment by default and if you didn't want to file a motion to have that default judgment vacated, then you have to have a legal exemption to prevent them from being able to file a garnishment against your income.

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So if you can't check one of those boxes to claim an exemption, then they will get a garnishment as a matter of law.

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And yes, you should have gotten a notice of a default judgment mailed to the address that you put on your Answer. It is very confusing why you wouldn't have received anything....no notice of any trial date and no copy of any judgment showing a default. This may require some digging to see if the clerks maybe made a mistake in sending notices to your address or to a wrong address which would explain why you never were notified of a trial so you could appear and defend.

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But absent having an exemption you can claim or filing a motion to vacate the judgment based on procedural problems, then they will unfortunately be able to get their garnishment put in place.

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thanks

Barrister

Customer: replied 1 year ago.
My only guess is that we moved since the original paperwork, but now have our PO Box, which is how they sent this current letter. UGH! This is so frustrating. Would it be wise to file a MOTION to vacate the default considering these circumstances? When will they garnish these wages and will it be from ONE paycheck? This could hurt us in a very large way.
Expert:  Barrister replied 1 year ago.

Ok, that makes sense then because they would have sent anything to the original address on the Answer. It would have been up to you to update your address with the court if you moved.

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To be honest, if they can show that they sent something certified mail to the old address that was returned, then you are kind of sunk here because they sent it to the proper address of record if you didn't update your address... So filing a motion to vacate probably would be denied because it was your move and failure to notify the court that was the cause of you not getting proper notice of any further action.

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And the "continuing" portion of the garnishment means that they can garnish X% from each paycheck, typically a maximum of 25%, until the judgment is paid..

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thanks

Barrister

Customer: replied 1 year ago.
Okay, interesting. I just went to our physical mail box a few minutes ago....and got a copy to our current physical address of the order granting the judgement (the garnishment forms came to PO box) that says they sent to our current address a court date to which we did not appear. I did not receive such notice. They stated they sent it to our current address, not the old one. Is there anything I can do with that?
Expert:  Barrister replied 1 year ago.

Ok, then that would give you more ammunition to file a motion to vacate the judgment if they are saying that they sent the notice of the court appearance and they can't prove that they did so. My guess is that they tried to send it to the old address, something eventually came back with a forwarding address on it, and then the clerks changed the address on the case file to show the new address.

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Now whether they can prove that they sent notice or not, I can't say. But judges tend to not like to grant default judgments if they can keep from it so the judge may agree to vacate the judgment based on the confusion of whether notice was actually sent or not..

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thanks

Barrister

Customer: replied 1 year ago.
How do we go about doing this? How do we file and fill out those forms?
Expert:  Barrister replied 1 year ago.

If you aren't familiar with drafting your own motions, then you may want to contact a local attorney to assist with filing the motion as there typically aren't "template forms" where you just check boxes and then file it. The motion is drafted up individually and sets out the sequence of events in a short story format and then at the end sets out the legal grounds for why the judge should enter an order basically voiding the judgment.

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However, as luck would have it, this is a link to a WA organization that provides you with samples of everything and the instructions on how to fill them out:

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Motion to Vacate Judgment WA

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thanks

Barrister