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I have a judgement and have garnished wages before a chapter

13 and stay were in...
I have a judgement and have garnished wages before a chapter 13 and stay were in place. Am I entitled to the money I have garnished?
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1/8/2013
socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 39,346
Experience: Attorney and Real Estate Broker -- Retired (mostly)
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Hello,

Federal Bankruptcy law requires that two elements must be satisfied in order for the creditor to have the rights in the garnished wages (see, e.g., In re Morehead (6th Cir. 2001) 249 F3d 445, 447–449):

1. That the employee must have already earned the wages before the date when the bankruptcy petition was filed; and

2. That the garnishment must have actually taken place -- i.e., the earned wages must have already been set aside by the garnishee/employer under the garnishment order, or actually levied by the sheriff/levying officer, before the date when the bankruptcy petition was filed.

If your garnishment satisfy both of these elements, then you're entitled to the money. Otherwise, the bankruptcy trustee can avoid the garnishment as a preferential transfer, under Bankr. Code 547.

Hope this helps.
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Customer reply replied 4 years ago

I was hired by the parties to do work on their house,filed a lein for none payment, got a judgement to garnish wages, and monies have been levied by the sheriff before the petition was filed. Do I satisfy both elements?

Yes.

Hope this helps.
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Customer reply replied 4 years ago

I still may have a problem. "Stated in section 547" "The transfer was made (90) days before the bankruptcy was filed if the transfer is to a non-insider". What do you think?

Customer reply replied 4 years ago

I still may have problem. Stated in section 547 "The transfer was made (90) days before bankruptcy was filed if the transfer is to a non-insider" What do you think?

If the writ of garnishment was issued by the court prior to the 90-day preference period, then I believe that the wages are not avoidable by the bankruptcy trustee, under Bankr. Code 547. See In re Riddervold, 647 F.2d at 346 (payments during 90-day preference period pursuant to garnishment writ executed prior to 90-day preference period held not to be preference because, under New York law, "the debtor has no property or interest in property subject to the levy which can be transferred"); Montana Nat. Bank v. Merchants' Nat. Bank, 19 Mont. 586 (MT 6/7/1897)(NY garnishment law substantially the same as MT).

If the writ of garnishment was issued within the 90-day preference period, then I believe that the garnishment is avoidable, and the bankruptcy trustee can demand its return.

Note: If you have not filed a proof of claim with the bankruptcy court on your judgment, then the bankruptcy trustee would have to file a full-blown lawsuit against you to recover the garnishment monies, and you would be entitled to request a jury trial. The resulting costs could make the entire case too costly for the trustee to try to recover from you.

If you have filed the proof of claim, then you would be bound to the bankruptcy court jurisdiction, but the bankruptcy trustee would still have to sue you in bankruptcy court, and you would not be entitled to a jury trial. This is still a pain in the butt for the bankruptcy trustee, unless your garnishment was at least $10,000 (in my opinion) -- because, in addition to the above, the trustee is not entitled to recover attorney's fees from you, even if he/she wins and gets a judgment to avoid the transfer of garnished wages.

The point is that even if the trustee has the authority to recover the money, he/she may choose not to do so. Moreover, you could offer to settle the matter with the trustee for a lesser amount, and the trustee may agree, in order to avoid having to choose between the cost of your defending against the trustee's legal action -- if the trustee decides to sue you to recover.

A complicated situation, for sure.

Hope this helps.

socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 39,346
Experience: Attorney and Real Estate Broker -- Retired (mostly)
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Customer reply replied 4 years ago


Thanks for the help. My action fell under the 90 days, so it looks like they may walk away

Customer reply replied 4 years ago


I have letter that I have written to trustee that I would like you to read and give an opionon. Is that possible?


Case no 12-61905 District of Montana

I'll be happy to read it and tell you what I think. However, without reading the demand letter from the bankruptcy trustee, I'm not sure that my opinion would have much relevance.

Note: Please redact any personally identifiable information from your letter, so as to protect your anonymity.
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Customer reply replied 4 years ago


Can I contact trustee and get demand letter?

Customer reply replied 4 years ago

 


1/9/2013


Dear Mr. Drummond


In regards XXXXX XXXXX and Gia Holiway Case No. 12-61905


My name is XXXXX XXXXX have a Judgment and Garnishment, Case No. C-V-12-3772 in the County of Park, of Ms. Holiway’s wages that have been stayed by this recent filing on the 86 day.


In the State of Montana am I entitled to a Secured Claim under 11 U.S.C. 506 (a) because “in some states, a court judgment is a lien.”


It would not have been there unless I had the garnishment.


I missed the creditors meeting because I could not afford to take off work, as I pay my bills and I have a son in college.


I did work on their fire damaged house, passed all inspections electrical/plumbing and approved by bank personnel. The final bill was sent to Safeco insurance and the Holiway’s put the money in their pocket, along with others’ monies involved in this project.


I put in a bid for another project for the Holiways, a conversion of a garage into a studio for Mr. Holiway. Ms. Holiway fudged my numbers and wrote a check to buy the 87 Wagoner that was repossessed by bank, see page 28 of Doc1. My crew was working on this project at the same time, but the money came from the bank and I sent the statements directly to them. So I was paid in full.


This was plain and simple bank fraud, but Anna DeYoung, the bank president, felt it was better to have Ms. Holiway making payments on the house so she didn’t prosecute. She instead made it a line of credit, which shows up on Schedule F page 18. The car was damaged when it was repossessed and worth maybe $1500.


What they do have that is not on their schedule B are several guns including a new Stainless Steel Ruger rifle that Mr. Holiway bought with cash from Debo’s Pawn shop in mid Sept or early Oct, on a Saturday, of this year, here in Livingston and a gun that Ms. Holiway uses to shoots trap on Thurs. at the trap club. 2 very expensive compound bows, tree stands, etc. Top of the line Fly rods, fly reels and all the other things that fisherman need. All of these items are stored with Ms. Holiway’s nephew, who sells cars for Ressler Motors. His house is in Bozeman.


A paper trail on the gun is at Debo’s, but the rest of this is unapproachable and the perjury factor is a moot point even if the items are within reach or so I am told.


They undoubtedly have a substantial amount of money as they are eating out almost every night at the best restaurants drinking wine and going to the bars afterward. Spouting off that they are filing for bankruptcy, like it is an accomplishment. This is a small town and they have loose lips.


The boat, an Aire Puma series that is listed on the schedule B page 13 at $425. New with frame is $3400, used is worth $1500 to $2000. I have photo and know where it is/was stashed a week ago, undamaged.


I find it odd, as I’m sure you do, that an individual making $244,537.78 over a 3 year period stated on page 26 of 12-6105-RBK Doc#1, are unable to budget their money, pay any debts and be allowed to file for bankruptcy and at the same time mocking the very system that you represent by stating 3 chickens on their schedule B. They don’t have chickens.


It is not a question “if they are going to run, but when”. That is what people on the grift do.


You can contact me.

Hello again,

I understand your annoyance about the situation, however, I do not see the point in discussing the debtor with the trustee, except to the extent that it positively affects your right to retain the wage garnishment.

If the trustee has made no formal written demand for repayment of your garnishment, then he has probably evaluated the benefit/cost ratio and decided that it's not worth trying to recover from you.

If you want to file a complaint concerning possible bankruptcy fraud, then you may want to consider contacting the assistant U.S. Trustee for Montana:

NEAL G. JENSEN, ASSISTANT U.S. TRUSTEE
XXXXX SUITE 204
GREAT FALLS, MT 59401
Phone:(NNN) NNN-NNNNFax:(NNN) NNN-NNNN
Go to USTP Region 18 Website

 

Raising these issues to the trustee in the particular bankruptcy case, may cause the trustee to start thinking about you, rather than the debtor, and it could cause the trustee to decide to try to recover the garnishment. In short, I think that you may want to simply put the letter on the "back burner" and just move on with your life -- unless you decide to contact the assistant U.S. Trustee and discuss the bankruptcy fraud issue. Then, the trustee may ask you to come into the office and sign a formal statement.

 

Hope this helps.

 

 

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Customer reply replied 4 years ago


Your right I obsess.


 


The money I have garnished is in the county bank account, as they hold it for 120 days and so far the trustee has not ask for it back. The check was to be written on the 17 of this month.


 


The civil clerk tells me without a court order she cannot release the money to me or the trustee.


 


If the trustee doesn't go after it, which court do I approach to recover and at what time?


 


4/8/13 is the deadline to file a claim.


 


You have been incredibly helpfull and I really appreciate everything.

I pulled the case file from the court (cost me about $10; reimbursement would be appreciated).

The petition shows a garnishment on 9/17/2012 for $681.09. I assume that's what we're talking about.

The confirmed Chapter 13 plan does not expressly provide for your garnishment. It only states that unsecured creditors must file a proof of claim to receive any payment under the plan. This leaves your debt somewhat in a gray area, because until the court determines it to be part of the bankruptcy estate, or not, you can't reach the money, since the state court won't release the money.

So, you and the trustee are in "check." Options:

1. You can contact the trustee and offer to split the money, if the trustee will prepare a stipulated order to that effect and submit it to the bankruptcy court.
2. You can sit and wait and see whether or not the debtors complete the Chapter 13 plan. If the plan is dismissed or converted to Chapter 7, then the dismissal order would operate to release your garnishment. Conversion would operate to abandon administrated property to the debtor, but since it's already garnished, that too would release the payment to you.
3. You can file a proof of claim and hope you receive payment from the debtor's plan payments, instead of trying to reach the garnishment. If you do this, you can count on the trustee wanting to stipulate to the release of the garnishment to the court, because that money can be used to pay creditors, and there's no reason why you should be entitled to be paid twice on the same garnishment.
4. You can file an adversary proceeding and try to prove that the money is not part of the bankruptcy estate. This would cost you a fortune, so it's not a practical option -- I'm just covering all the bases.
5. You cannot file a motion for relief from stay, so as to go after the garnishment directly, once the Ch. 13 plan is confirmed (and it is), unless you file a proof of claim and the debtor defaults on the plan payments. So, this option is off the table.

BotXXXXX XXXXXne, you may want to call the trustee and see if you can work something out. I wasn't aware that the debtor was in Chapter 13 -- I thought this was a Ch. 7, which would have permitted you to just wait about four months for the discharge, and then get your money. But, with the Ch. 13, you can't even get your money after the 5 year plan completes. So, you're basically stuck with the options described above.

But, if the debtor successfully completes the plan, then the discharge from Chapter 13 would not grant you the power to obtain your money -- and it will be stuck in the courthouse forever. So, that leads back to a negotiation with the trustee. Some money is better than none.

Hope this helps.
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Customer reply replied 4 years ago

Of course I will reimburse you. Already sent you $10 bonus.


How?


 


 


I could have sent you case file, the Ch 13 plan and Statement of current income.


What is vexing is that there is $3387.71 according to civil clerk that has been garnished as of the Dec. 6 stay. I'm unsure of why only the Sept 17 amount is shown.


 


So, for the time being the clerk, you and I are the only one's that know the amount.


To be honest should I tell the trustee?


 


I frankly think that the parties will go into default which if that happens the money will be released, at some remote date?

Of course I will reimburse you. Already sent you $10 bonus. How?

 

A: Contact customer service and ask them how you can reimburse me for my costs.

 

I could have sent you case file, the Ch 13 plan and Statement of current income.

A: I suppose, but it was more efficient for me to pull the file myself -- rather than wait and not have an answer for you.

What is vexing is that there is $3387.71 according to civil clerk that has been garnished as of the Dec. 6 stay. I'm unsure of why only the Sept 17 amount is shown.

A: Well, I can't encourage you to make a misrepresentation to the bankruptcy court. But, you could offer the trustee to split the $681.09 in half. You would have to hope that the trustee writes the order something like, "The Trustee and Creditor have determined that in the interest of avoiding costly litigation that Trustee shall be entitled to $354.55 of the amount garnished from debtor's garnishee, currently in the custody of the [name of court], and that Creditor shall be entitled to the remainder of the garnishment."

 

I wouldn't bet on that happening. More than likely, the trustee will check on the amount, before writing the order. So, the best you can hope for is a 50/50 split.

So, for the time being the clerk, you and I are the only one's that know the amount. To be honest should I tell the trustee?

 

A: If you want the money now, you'll have to "fess up."

 

I frankly think that the parties will go into default which if that happens the money will be released, at some remote date?

A: They could default at any time. If they do, then the Chapter 13 may be dismissed (most Ch. 13s are dismissed early). If that happens, then the debtor is returned to the same status as existed before the filing of the Ch. 13 petition, which means that your garnishment returns in full force, and you get your dough.

If the case is converted to Ch. 7, then the trustee is in the same position as he's in now, and if he doesn't go after the garnishment (which he won't, because it's too costly), then the discharge of the Ch. 7 will "technically abandon" any unadministrated assets to the debtor. And, once again, since the garnishment is already made, the money is yours. The only difficulty in this case, could be that the court clerk won't understand "technical abandonment," and you'll have to ask the state court to find that the money is yours as a matter of law, and order it distributed to you.

Hope this helps.

socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 39,346
Experience: Attorney and Real Estate Broker -- Retired (mostly)
Verified
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Customer reply replied 4 years ago


Contacted customer service and didn't get answer to my question of how to get you the 10 spot, yet.


 


I'm working up some questions to the trustee.


Should I try to talk to him directly or E-mail?


 


I would like to keep you on board with this project till I get an answer from trustee etc.


 

Contacting the trustee by email is probably okay. Whatever works.

Re the $10, from what I can tell, customer service has completely misunderstood your request. They don't understand the concept of a pure reimbursement -- they are only set up to rake 50% off of each customer payment.

I'm going to close this Q&A session, after you read this note (the system will tell me when you do). Forget about the $10. When you need to contact me again, start a new Q&A, offer whatever you want, and put my userid ("To socrateaser") at the beginning of your new question. The system will send me an alert, and we can go from there.

Please don't respond to this note. It will reopen this Q&A.

Thanks for your understanding and cooperation.

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socrateaser
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Satisfied Customers: 39,346
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