Have you received a recent notice of judgment from your employer or bank that your wages are going to be garnished and/or your bank account is going to be levied? Many people have been in this situation before, including myself. It can be scary, overwhelming, and infuriating at the same time. It can be even more bothersome if you believe you were never served, or not properly served. What can you do? Do you even have any options?
Every situation is different, depending on where you live and the specifics of your case you may be able to have some recourse if you can prove that you were not properly served, or not served at all. Depending on the amount of the judgement it could be worthwhile to put some work in to uncover whether or not you were correctly served and the steps you can take to get everything resolved.
Before I move into how you would prove that you were not properly served, let us go over the process of being served.
Process of Being Served
Getting served for a civil case can happen in any of the following 3 ways:
1.) Having the court documents given to you directly, either a county sheriff or a professional process server will give you the documents directly.
2.) Through the mail. Many courts allow summons and complaints to be sent out via Certified Letter.
3.) Finally, in some instances the courier can give the papers to any person over the age of 18 who lives at your residence or job/business.
Once one of these 3 things (or a combination of the 3) has happened, whether or not you have responded, the party who is suing you will submit a document to the court called Proof of Service, an example of that document can be found here.
You Conclude You were not Served, Now what?
If you believe that you were not served, or that you were served incorrectly, you may be able to file a motion with the court. This is called a motion to set aside. However, you would have to prove that you were not properly served, or not served at all. There are some steps that you can take to prove this. It is highly advisable to consult a debt defense or litigation attorney first.
Step One: Request a copy of the proof of service that was filed with the court.
Step Two: Inspect it for errors, things that are obviously not accurate:
- An old address that you updated with the original creditor, and you can prove that you have not lived there.
- Pay attention to the date of service. Where you out of town? On vacation? Did they serve you at your work – if so, were you there that day?
- Pay attention to the addresses where they said you were served at – make sure you were actually there at the date and time they served you.
- If they served someone else at your work or job, view the description. Do you have someone at either of those places with that name/description?
Step Three: If you find any of these errors, take note of the discrepancies and make an appointment with a local debt defense or litigation attorney to file a motion to set aside.
You Cannot Prove Any Wrong Doing – What Are Your Options?
Unfortunately, it can be rather difficult to prove whether or not you were served correctly or incorrectly. Although it can feel frustrating and you may feel hopeless, there are things you can do to rectify the situation and get your finances back in order.
Try to Settle The Debt
In some instances, you may be able to settle the debt with the original creditor or collection agency. It may prove to be rather difficult to negotiate a settlement for less than what is owed with monthly payments. However, if you have some cash reserves and it will not cause you any more financial hardship you could offer a lump sum payment to get them to stop the garnishment.
If you are unsure or anxious about dealing with them yourself, you could work with a reputable Debt Settlement company. It is much easier to settle the debt before the judgement is obtained, but a settlement may still be reachable. When researching debt settlement companies, be weary of companies who are high pressure, do not disclose fees and make promises that you feel are too good to be true.
Bankruptcy
In many instances people who are facing a default judgement may find that bankruptcy is the best option for them. Bankruptcy can provide quick and effective protection from collection efforts due to an automatic stay, when an automatic stay is in place all collection activity stops, including judgements. There are two main types of bankruptcy:
The first type is: Chapter 7 Bankruptcy is often known as liquidation bankruptcy. All eligible debts are typically discharged in 90-120 days from your filing date. In this type of bankruptcy, you must take and pass the means test. During a chapter 7 bankruptcy case, the trustee will take a look at all your assets and anything that is worth more than the state or federal exemption could be sold and the funds above the exemption would be used to repay creditors and the remaining would be returned to you. 90-120 days after you file your case will be discharged and you will no longer be legally responsible for most debts. Certain debts like student loans, child support and alimony cannot be discharged in chapter 7 bankruptcy.
The second type of bankruptcy is: Chapter 13 Bankruptcy, This chapter is sometimes referred to as the wage earners bankruptcy. This is for people who do not pass the means test for their state, or have assets that are above the exemption limits, and they do not want to part with them. In this type of bankruptcy, your debts get restructured and a portion of the debts are repaid over 36-60 months. At the end of the chapter 13 plan, if there are any debts left, they are discharged.
Conclusion
Although judgements can be very frustrating and often times seem to be unexpected, you still have options. The best course of action is to always document everything, take notes of who you talked to, when you spoke with them, and details of your conversation. Making sure you have all of your facts in order when you are going to meet with an attorney or dealing with the courts yourself can give you a better chance of success.
Regardless on what happens or what has happened, we can help walk you through what options you have. We can explain the pros and cons of everything and tell you what to expect. We are on your side and want to help you get out of debt cheaper, faster, and easier. Give us a call at 833-272-3631! You can also use our free Debt Relief calculator below to explore all of your options and see what may be the best fit.
