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I got a wage garnishment from Midland Funding LLC. I have

I got a wage garnishment...
I got a wage garnishment from Midland Funding LLC. I have never been served with a court summons and the debt is from 2005. This is the first time that I am notified of this. 1) What do I need to do to stop this garnishment from going further and for good?
2) If this is not disputable, what are my other options?
3) What can I do to stop them from doing this again?
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Answered in 5 minutes by:
11/1/2011
Alex J. Esq.
Alex J. Esq., Attorney at Law
Category: Legal
Satisfied Customers: 16,742
Experience: Experienced Licensed Attorney
Verified
Hello. My name is XXXXX XXXXX I will be happy to answer your question.

Was a judgment obtained against you?

What is the amount of the judgment?
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Customer reply replied 6 years ago
I think a judgement was obtained. The total plus fees was 11K.
Do I understand correctly that you were never server with the court summons or complaint and had no knowledge that you were being sued?

Was the debt valid?

How long ago was the judgment against you obtained?
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Customer reply replied 6 years ago
I was never served. I was threatened by some credit card collectors that I was going to be garnished.

The debt was valid at one point, but then it's been so long and it's been sold all over that I didn't keep up with it. It's been past the statute of limitations from what I'm reading. So perhaps you can define valid.

I don't know when the judgement was obtained. I assume that there needed to be a judgement in order for them to garnish. I also assumed because the checkbox in the withholding order said that they are the judgement creditor.
Unfortunately even if the statute of limitations had expired at the time that the lawsuit was filed against you and the judgment was obtained, the statute of limitations bar, would have to be raised as an affirmative defense and if it was not raised prior to this creditor obtaining a default judgment against you, the judgment would be legally valid.

At this point you can try to file a motion to vacate this default judgment in the court that had awarded it to this creditor based on the lack of service, but the more time had passed since the judgment was granted, the more of an uphill battle you will have in your efforts to set aside this judgment and even if it is set aside, you would still be facing the same lawsuit which you will need to litigate and defend your position against this creditor's claim.

The other way of approaching this issue is to try to negotiate some type of a settlement with this collection agency by either offering them a reduced lump sum amount or by negotiating a monthly payments that you can afford.

Unfortunately since the judgment creditor is already able to garnish your wages, while they might still be agreeable to a lump sum settlement, it is unlikely that they would agree to accept a monthly payment that is less than what they are able to garnish, unless you change your employer and they are unable to garnish your wages any longer.

If you are satisfied with my answer, I would appreciate if you would click on the accept button.
Please keep in mind if you already made a deposit or on a monthly subscription plan you will not incur any additional charges, but I will only be compensated for my time and effort only if you click on ACCEPT.

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Customer reply replied 6 years ago
Hi Alex, You have given me no action items here.

Please give me more details about "you would still be facing the same lawsuit which you will need to litigate and defend your position against this creditor's claim."
I was not given the opportunity to raise an affirmative defense. The address on the court order is from years ago. Is this the defense that can be used? What would make a legitamate defense?

Also, my other part of the questions that was not answered. "What can I do to stop them from doing this again?" I would like preventative measures.

 

Thank you.
Thank you for your follow up.

1) If you are successful in setting aside default judgment that was granted in this case to the creditor, it does not dismiss the case, but simply means that the case will be tried on its merits, meaning that the creditor will present their case and you will defend your position. However the case will be considered filed as of the original filing date, for the purposes of statute of limitations.

Generally the plaintiff / creditor does not have to personally serve you and if a process server had attempted to serve, but was not able to locate you or you were avoiding service, a constructive service can be accomplished by publishing the notice of commencement of action in local newspaper, twice in one month.

2) You can only be sued once for the same debt and the outcome of the lawsuit would be either that you or the creditor would prevail. So if the creditor prevails, they get a judgment and will try to collect on it. If you prevail the court rules in your favor and while creditor can file an appeal, they very rarely would do so, for such small amount and the case is over and they cannot file another lawsuit on the same debt.

If you are satisfied with my answer, I would appreciate if you would click on the accept button.
Please keep in mind if you already made a deposit or on a monthly subscription plan you will not incur any additional charges, but I will only be compensated for my time and effort only if you click on ACCEPT.

Bonus and positive feedback are always greatly appreciated!
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Customer reply replied 6 years ago
I'm still not clear. Does it mean that if the original date of file is outside the statue of limitations that it CAN be dismissed? Because this is an old debt, unless I'm mistaken, they had to have made something up for it to stay within statute of limitations.

For the second question, I meant from another creditor or the same creditor but another account.

Thank you for your prompt response.
Thank you for your follow up and this is a pretty complex area of the consumer law, so please do not hesitate to ask me any related follow up questions.

1) If you are able to set aside / vacate the default judgment that was obtained by the creditor, it would start the lawsuit pretty much from the time that the complaint was filed, so you would be allowed to have 20 days to respond to the complaint by filing an answer or a motion to dismiss and to raise any affirmative defenses, such as statute of limitations.

However it is important to keep in mind, that the original date that this lawsuit was filed will be considered when raising the statute of limitations claim, i.e. if the lawsuit was filed in October of 2006, even if you vacate / set aside default judgment, the date of the lawsuit would be October 2006 and not the date when the judgment is set aside.

Now if you are able to set aside / vacate default judgment and at the time the lawsuit was originally filed, the applicable statute of limitations had already expired, you will be able to raise that as an affirmative defense and possibly have the case dismissed.

2) Each account/debt is considered to be separate debt, regardless whether it is with the same or different creditor, i.e. if you had 4 credit cards with Chase and defaulted on all 4 of them, Chase would normally sue you separately for each account, due to the facts that this are different debts / open end contracts, with different amounts owed, different default dates and terms....So once creditor can sue you many times for different debts / accounts, but not more than once for the same one, unless the case gets dismissed without prejudice (can be re-opened) on some technicality and in that case the creditor can refile the lawsuit.


If you are satisfied with my answer, I would appreciate if you would click on the accept button.
Please keep in mind if you already made a deposit or on a monthly subscription plan you will not incur any additional charges, but I will only be compensated for my time and effort only if you click on ACCEPT.

Bonus and positive feedback are always greatly appreciated!


If you are satisfied with my answer, I would appreciate if you would click on the accept button.
Please keep in mind if you already made a deposit or on a monthly subscription plan you will not incur any additional charges, but I will only be compensated for my time and effort only if you click on ACCEPT.

Bonus and positive feedback are always greatly appreciated!
Ask Your Own Legal Question
Customer reply replied 6 years ago
Thanks. Just one final short question for you to dispel. You are certain that the statute of limitations starts to count down when the last judgement was filed and not when the first delinquency was made. The reason I ask is that what you say is in contrast with what many other resources claim, which says the countdown starts and resumes when the last payment was made...although I am aware that free advice on the net is what it is, I thought I'd just confirm.

Thank You.
I think you misunderstood me.

The statute of limitations will start to run from the date from the initial delinquency on the account, as long as no subsequent payments were made, that would re-start the statute of limitations.

What I was trying to explain is lets say you last delinquency was in January, 2002, a lawsuit was filed in January of 2006 and the default judgment was granted and in November of 2011 you were able to vacate / set aside this default judgment from 2006, as long as in 2006 when the lawsuit was files, the statute of limitations did not expire, you will not be able to use SOL as affirmative defense, by stating that it has expired in 2011...

I know this is pretty complicated area of law and I hope that this clarifies my answer.

Please let me know if you do have further related follow up questions.

If you are satisfied with my answer, I would appreciate if you would click on the accept button.
Please keep in mind if you already made a deposit or on a monthly subscription plan you will not incur any additional charges, but I will only be compensated for my time and effort only if you click on ACCEPT.

Bonus and positive feedback are always greatly appreciated!
Alex J. Esq.
Alex J. Esq., Attorney at Law
Category: Legal
Satisfied Customers: 16,742
Experience: Experienced Licensed Attorney
Verified
Alex J. Esq. and 87 other Legal Specialists are ready to help you
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Customer reply replied 6 years ago
Alex, thank you for your time and detailed answers on this issue. You have made my first experience on this service great.

Thanks,
Doug
Thank you very much for your accept and generous bonus and good luck!
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Alex J. Esq.
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