Hello XXXXXXXX,
I will be happy to assist you. First of all what State is this in? Also, do they have a judgment against you already, and if so when was it ordered? Thank you!
The state is California. they do not have a judgement yet but will by monday if I do not pay the $3500
OK. First of all the judgment has to be ordered against you first, then they have to file a writ of garnishment before they will actually begin garnishment. The judgment has to be signed by a judge, as does the Wage garnishment. I am assuming the hearing is on Monday, if not they are using deceptive collection practices by misleading you and threatening legal action when there is none pending.
If they will not accept an offer of compromise you can either wait and see what they do, some collectors do not follow through, some do, then you could file bankruptcy; or you could file bankruptcy now. Either way the debt or the subsequent judgment will be discharged, along with any other debt you have. You cannot take partial bankruptcy, and any assets you may have could be attached by the Trustee.
They are stating that something will be filled on monday and that is all it takes. Then with in three days my employer will be notified to start the garnishment.
Ask them to fax you or send you the paperwork that authorizes this 'garnishment'. They must have a judgment before they can obtain a Writ. Have you been served a summons? Have you appeared in court or had the opportunity to appear? If not they CANNOT be garnishing your wages in three days. If they are telling you this, you need to write them a letter and let them know you will be reporting them for violating the Fair Debt Collections Act.
In California they must have the Writ of Execution - To begin a wage garnishment, you must first obtain a document called a Writ of Execution. A Writ of Execution must be filed and a fee paid to the court by the creditor. The Writ of Execution is a certification of the amount owed and allows the creditor to send the levying officer to the debtor's employer to begin the wage garnishment. In most counties in California, the Sheriff is the levying officer.Application for Earnings Withholding Order - Wage garnishments are also called Earnings Withholding Orders ("EWO"). After they obtain the Writ of Execution, they must also fill out the EWO application.
After filling out the EWO Application, you file it and the original Writ of Execution with the levying officer for the County where the debtor's employer is located.An Earnings Withholding Order (wage garnishment) requires an employer to withhold and remit up to 25% of the debtor's disposable earnings (net income) to the sheriff or levying officer for payment to the creditor. The withholding amount is 50% if the writ is for spousal or child support. The Earnings Withholding Order remains in effect for 10 years or indefinitely (if for support) until the judgment is paid, the debtor ceases to work for that employer, a higher priority Earnings Withholding Order takes effect (such as an Earnings Withholding Order for child support) or the Order is terminated by operation of law (court order or failure to file Opposition to Claim of Exemption.)If the earnings withholding order is not for spousal or child support, the debtor may file a claim of exemption with the Sheriff in an attempt to terminate the wage garnishment or to reduce the withholding amount. The Sheriff will mail a copy of any claim of exemption and instructions on how to oppose the claim to the creditor. The wages of a spouse not listed as a debtor on the writ of execution may only be garnished pursuant to a court order.
An Earnings Withholding Order should be used to levy on monies earned by the debtor for personal services rendered (whether called wages, salary, commissions, bonuses, or anything else.)
The Earnings Withholding Order includes a warning to the employer stating, "It is illegal not to pay amounts withheld for the Earnings Withholding Order to the levying officer.
If they do have all this done in the next three days, you can still fight the garnishment. You can attempt to reduce or eliminate the garnishment, by filing a Claim of Exemption and a financial statement with the Sheriff's Department. You can either claim all of your wages exempt or agree to have a lesser amount withheld from your check. If the judgment creditor does not object, then then the garnishment will be changed in accordance with your claim form. If the creditor objects, the court will schedule a hearing and determine how much should be withheld from your check.
Attorney
Chapter 7 & 13