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The OP hasn't been back since the day she posted this question, but I'll post this anyway in the hopes that she might see it or it will help someone else.
- According to the OP's profile she lives in Georgia. The SOL in GA is 4 years for credit card accounts. Therefor, this debt is time barred provided she is correct about the delinquency date.
- A debt collector who files, who even threatens to file a lawsuit on a time barred debt, is in violation of the Fair Debt Collection Practice Act. The consumer can either file a countersuit or bring it as a seperate action.
- The OP should check the case file and find the document claiming how and when she was served. If the information is incorrect or fraudulent, she has grounds to have the judgment vacated and her garnished funds returned to her. Also she should check to make sure their claimed service was done within the court's rules of civil procedure. If they did not follow the RCP, the service is invalid and the judgment can be vacated.
My ex-husband got off easy because they completely dismissed this in his bankruptcy and came after me for all of it! Of course in my divorce decree he was to pay this debt so i knew nothing about it for years.
I never got a letter, never got served, nothing at all. My employer is the one that brought this to my attention and gave me a copy of the letter!
What kind of attorney do i go too???
If the divorce decree states that it is his responsibility to pay, that alone should end this, right?? I would contact the lawyer that drew up the decree.
If the divorce decree states that it is his responsibility to pay, that alone should end this, right?? I would contact the lawyer that drew up the decree.
Unfortunately, no. The courts don't have the power to take her name off the card and absolve her of the legal obligation. On top of that, he included this debt in his bankruptcy filing.
Some states allow a debt to be "tolled."
If you leave the state, the SOL goes on hold or is "tolled"
I am not an expert, but I have tried to find out as much as I can about tolling in the past due to personal experience.
Some states do not let you off the hook for not recieving a summons, if you were not home to get the summons they still go ahead with the case and if you don't show you are automatically guilty and a judgment can last forever as they can be renewed.
How can a collector get $$$ from your pay before the gov't gets their taxes????
If your hourly wage goes to taxes, then they would have to come after you personally for the tips.
Some states allow a debt to be "tolled."
If you leave the state, the SOL goes on hold or is "tolled"
I am not an expert, but I have tried to find out as much as I can about tolling in the past due to personal experience.
Simply put, the SOL does not toll if you are available to be served.
Ive just learned of garnishment of my bank account and i have NEVER recieved any court papers. debt is from another state over 8 years ago, and I have been at the same address in a new state the whole time. shouldnt i have gotten something in the mail???
Location: 23.7 million to 162 million miles North of Venus
24,454 posts, read 12,996,676 times
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Quote:
Originally Posted by pollyle
Ive just learned of garnishment of my bank account and i have NEVER recieved any court papers. debt is from another state over 8 years ago, and I have been at the same address in a new state the whole time. shouldnt i have gotten something in the mail???
More than likely they served you at your last known address.
If you had been in contact with whoever sued you at the address you are living at now then you have probably been sewer served. That means that even though they knew where you are they served you where they knew you weren't.
If the judgment is in the state where you are now then go get a copy of the recorded judgment (the judgment must be recorded for them to legally collect on it) from the court clerk where the judgment happened. Look over the service papers that should be in that file to see how and/or where they claimed you were served.
If you had been receiving calls or letters from them, at your current address, before they filed suit then they know where you live. If the service papers show them serving you at an older/other address then you may be able to have the garnishment stopped and the judgment vacated for improper service.
Tips that are left in the form of cash or labeled as such on a credit card charge are NOT wages paid by the employer, but are gifts from the customer to the employee, and as such, are not garnishable under law. If the tips are pooled and distributed according to a formula by the employer to the staff, then such tips are considered under the control of the employer and subject to garnishment. DOL Opinion Letter WH-95 (Letter WH-95) dated December 9, 1970, provides that "tips are generally not considered within the meaning of the term 'earnings.'" Letter WH-95 further explains this is so "because garnishment is inherently a procedural device to reach assets in the hands of the garnishee," and that "[t]ypically, tips are paid by a third person to an employee, and do not pass through the hands of the employer." Letter WH-95 further states "[t]here may be so-called tipping situations where customer payments would constitute 'earnings' under the [CCPA] definition." For instance, if a restaurant customer is charged a certain percentage on a check and this amount is then paid to the employee, then "there is no gift by the customer, and there is compensation flowing from the [restaurant employer] to the [employee]."
See:
[url=http://www.morelaw.com/verdicts/case.asp?n=A-3088-08T13088-08T1%20&s=NJ&d=44326]Big M, Inc. v. Texas Roadhouse Holding, L.L.C.[/url]
A note on SOL - as defined in the FDCPA, the SOL starts as of the "last recorded activity" on a debt. For example, if a debt defaults in 2002, but collection efforts did not stop until 2003, then the SOL would be as of 2003. Then, if the creditor 'reopens' the debt and makes another attempt to collect in 2004, the SOL is reset to the more recent date. That is why companies will purchase 'old debt' and re-open the accounts to collect. You'll also see the same debt reported by multiple parties on a credit report. An easy way to dispute a debt once a purchasing agency has the debt is to request proof that the debt is owed - if they can't provide proof that you owe THEM the debt, they cannot legal collect it from you. Since they purchased a bulk of debt, it will be a pretty slim chance they will have the actual documents showing your signature to their company.
Location: 23.7 million to 162 million miles North of Venus
24,454 posts, read 12,996,676 times
Reputation: 10778
Quote:
Originally Posted by chance2jump
A note on SOL - as defined in the FDCPA, the SOL starts as of the "last recorded activity" on a debt. For example, if a debt defaults in 2002, but collection efforts did not stop until 2003, then the SOL would be as of 2003. Then, if the creditor 'reopens' the debt and makes another attempt to collect in 2004, the SOL is reset to the more recent date. That is why companies will purchase 'old debt' and re-open the accounts to collect. You'll also see the same debt reported by multiple parties on a credit report. An easy way to dispute a debt once a purchasing agency has the debt is to request proof that the debt is owed - if they can't provide proof that you owe THEM the debt, they cannot legal collect it from you. Since they purchased a bulk of debt, it will be a pretty slim chance they will have the actual documents showing your signature to their company.
Wrong.
SOL is state based and is not governed by the FDCPA.
Depending on which state a person is in .. the beginning of SOL would either be from the first default and the account was never brought current before it is charged off, or, from the last charge or payment on the account before the account was charged off.
Re-setting the SOL, once the account had been charged off, is not allowed in some states and is allowed in other states only if certain criteria is met. Original creditors and collectors cannot just decide to illegally re-set the SOL on a charged off account whenever they feel like it.
Multiple collectors reporting the same account is illegal. A duplicate dispute with the CRA's should work in getting all but the actual collector, who has the debt, off the report. If not, then a person should take the proper steps leading up to suing the offending collector(s).
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