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Paying Judgement, now they raid my bank account

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Had a credit card debt ($9,063) that I couldn't pay, tried to work with credit company, they sold off to a company that is represented by a law firm in my State.  They obtained a judgement $35.00 a week, as of 12/06/2013,  been paying since notice of judgement.  Yesterday they filed and went to my bank and took everything I had.  $369.00 out of my account even though I have been paying them weekly since notice of the judgement.  To the tune of $905 so far.  How can they do both if I have been paying weekly.  I have the check cut automatically out of my account and haven't missed any payments and have records.  And now they are adding on fees of $1,040 plus marshals fees above and beyond the debt.  What do I need to do?

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First thing I suggest you do is carefully and thoroughly read the judgment.

 

If the judgment was for X dollars and the $35 per week was a separate agreement that you think you had with the judgment creditor, then maybe the creditor was entitled to get the money by whatever means was available.

 

On the other hand, if the weekly payment was specified in the judgment itself you out to be able to go back to court and get the court to order the return of the money and the quashing of the additional fees.

 

So the question is: What, exactly, is written on the judgment paper above the judge's signature?

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This response is NOT intended to create an attorney-client

relationship.

 

You did not indicate what state you are in. You should first

check your state's personal property exemptions specifically

intangible personal property. In the state I am located in, 

for example, there is a $350 exemption for bank accounts

for most collection type of cases.  If you had a written

re-payment plan where the attorney agreed to defer

taking further legal action as long as you made your $35

per week payments without any breach, the other parties'

attorney may have some ethical issues to deal with for doing

what he/she did. 

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Normally a judgment is for the total amount due, plus costs and interest, and I never heard of a consumer debt collection judgment calling for a set weekly payment.

 

Right off the bat, you lost me.

 

I suggest you find the smartest person you trust who is willing to help you, and show that person the paperwork. Maybe you can find some help making sense of your situation.

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Tobias,

 

I don't think Explore meant a payment term as part of the actual judgment although I am not sure why such could not be done by stipulation of the parties.

 

I believe (maybe incorrectly) that Explore meant one of the at least two typical ways to reach a payment plan between a judgment debtor and a judgment creditor. . .

 

The first is a stipulated judgment with a separate "covenant not to execute" so long as agreed payment terms are followed.  The other is post judgment and is simply an agreement reached by the parties to pay the judgment without the need to execute on wages etc. 

 

Both avenues are routinely used and work quite well.  Personally, I just got an old client back on the agreed payment terms.  The client had missed two payments and the judgment creditor sought a writ of garnishment.  The parties agreed to work with each other and the writ was quashed.

 

Des.

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This response is NOT intended to create an attorney-client

relationship

 

Agreements (in italics) such as below are signed, contemporaneously with Stipulated Judgments, at least by my office, if Defendant is so interested.  It saves the Defendant from needing to attend an extra Court Hearing.

 

 

This communication is from a debt collector and constitutes an attempt to collect a debt.  All information obtained will be utilized for that purpose.

 IN THE XYZ SUPERIOR COURT 
                                       :
                                           CAUSE # ABC-1212-SC-00489
 
           Zippy LLC.            )
                           Plaintiff  )
        vs.                             )
                                         )
            Kimberly Debtor    )
            Defendant(s)       )  TEMPORARY PAYMENT PLAN
 
The parties Agree that
 
1)   Defendant(s), including any counsel for Defendant,  reads, understands and speaks the English language in a fluent manner.
 
2)  Defendant(s) will pay a minimum of $ 200  per  month through June 30, 201___ to the XYZ Superior Court Clerk, XYZ County Court House, 105 N. Michigan St., XYZ ggggg, starting ________________, 201___
and on the same date each month thereafter or closest
business date.
 
3)  Status/Review Hearing shall be scheduled for an unknown date anytime after June 30, 201____.
 
4)  As long as Defendant(s) timely makes ALL such payments without any breach under #2  above as applicable,  then Plaintiff‘s counsel shall defer seeking .additional Proceedings Supplemental remedies against Defendant(s) until after June 30, 201____.
 
5)   Defendant(s)/their counsel has/have received a completed copy of this Payment Plan.
 
______________                ______________________     Defendant/ Defendant’s 
counsel                                Pltf’s  counsel 
 
       The above and foregoing Agreed  TEMPORARY Payment Plan is APPROVED.
 
SO ORDERED:
 
                                                                    ________________________________________
               JUDGE,,  XYZ SUPERIOR COURT
 
 
So, Tobias, exactly how many Plaintiffs and/or Defendants have you represented at collection case hearings over the last 10 years? 

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They obtained a judgement $35.00 a week, as of 12/06/2013,

 

Please explain.  Judgments typically say that the court finds that the defendant owes the plaintiff $X and may include things like interest, attorneys' fees, and court costs.  While installment judgments are not unheard of, I have never heard of one being entered in a case involving credit card debt.  So, was the judgment entered for $35 per week or was it entered for $9,000+?  If the latter, what does the reference to $35 per week mean?  Are you talking about an agreement with the judgment creditor (whether made contemporaneously with the judgment or subsequently)?

 

Without that clarification, and without knowing what state you're in, it will be impossible to answer your question intelligently.

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That wasn't a fair request for me to make, so just point out the statute or court rule that authorizes a judge to incorporate a payment plan as part of a money judgment and I'll be happy.

 

How about Michigan statute section 257.515, which permits the judgement debtor to petition the court to for an order to provide for installment payments on the judgment? Michigan even has a form motion for it. Thus, at least in Michigan, a judgment debtor may seek to have the court order installment payments without any agreement from the creditor and over the creditor's objections. It might not technically be part of the judgment but rather a separate order, but the practical effect would be the same. 

 

Just because it is uncommon, at least in most states, for a court to order installment payments on a judgement without an agreement by the parties doesn’t mean that it never happens.

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Several states have that type of provision, including the original poster's home state of Connecticut for small claims. but that's not the point. Every one of those types of payment provisions are post-judgment, and they are not part of the judgment itself. First the creditor get a judgement for the whole amount due, plus costs, pre-judgment interest and anything else they can get, and only then does the possibility of a payment plan come into play.

 

But, even that is not the point either. It seems to me that the original poster does not have a clear understanding of his own situation. If there was a court approved payment plan and the debtor was in strict compliance with the plan, then he would be in a good posture to oppose the creditor's attempt to garnish his wage (bank).

 

If, however, the debtor is simply confused, it's possibly a different story.

 

He struck me as being confused, regardless of what the actual circumstances are. Sometimes people believe that a payment deal offered before suit is filed is still available after judgment is entered, when it isn't. I don't know what he is thinking, but "[t]hey obtained a judgement $35.00 a week" is just wrong.

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Several states have that type of provision, including the original poster's home state of Connecticut for small claims. but that's not the point. Every one of those types of payment provisions are post-judgment, and they are not part of the judgment itself. First the creditor get a judgement for the whole amount due, plus costs, pre-judgment interest and anything else they can get, and only then does the possibility of a payment plan come into play.

 

But as I noted before, the practical effect is the same: the judgment debtor in the end has a court order that provides for paying the judgment in installments. Whether that was included in the judgment itself or in an order entered after the judgment the result works out the same, right?

 

Perhaps the OP is confused. I agree it would certainly help to know exactly how it was that he/she had some order or agreement or to pay $35/week. 

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Perhaps. I think collecting a judgment for $9,000 is very different from collecting a judgment for $35 per week.

 

It isn’t any different if there is a court order after entry of the judgment that says all that the judgment debtor must pay is $35/week. Either way, the creditor still only gets to collect $35/week. So what difference do you think there is? I’m not seeing it.

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Consider the reasons for acceleration clauses in promissory notes when non-payment triggers default. There is no breach of a promise to pay a monthly payment in May 2018 until that time comes and no payment is made. Sure, it is theoretically possible to draft a judgment to read like a 30 year mortgage, but no court actually does it that way.

 

Money judgments are simple things. You owe $X plus costs plus interest until paid. Period.

 

If a judgment debtor fails to abide by an agreed order for periodic payments, I assume it is a simple matter for the judgment creditor to revert to the subsisting lump-sum judgment and proceed with other post-judgment collection remedies, such as bank garnishment as the O.P. feared.

 

If the periodic payment schedule is incorporated into the judgment itself, either the form of the judgment must be horribly complicated with acceleration clauses and such, which might trigger a whole new round of bickering, disagreement and litigation, or the judgment debtor must jump through the procedural hoops necessary to obtain a modification of the judgment.

 

As I said, it's not that it couldn't be done that way, it is just that it isn't done that way anywhere that I know of..

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If the periodic payment schedule is incorporated into the judgment itself, either the form of the judgment must be horribly complicated with acceleration clauses and such, which might trigger a whole new round of bickering, disagreement and litigation, or the judgment debtor must jump through the procedural hoops necessary to obtain a modification of the judgment.

 

Why would it need to be "horribly complicated?" The Michigan statute allowing for a court to order installment payments specifically states that if the judgment debtor defaults on those payments, the remedy is collection of the judgement using the usual collection methods. A judgement could work exactly the same way: “Judgement is entered in favor of the plaintiff for $9,000 to be paid in installments of $35/week. Default on the installment payments will entitle the plaintiff to collect the full judgment using all the remedies available to a judgement holder under the laws of this state.” That’s not complicated, is it? I don’t think it needs to be complicated (though certainly one could make it complicated if he/she wanted), and would be no different than what the result the Michigan statute, for example, provides by allowing an order after the judgement for installment payments.

 

You’re right that judgments drafted the way I suggested above are not common, if they occur at all. But since at least some states allow for what amounts to the same thing with an order after a judgment, there is certainly the possibility that it could be done that way and that perhaps some court has done just that.

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I imagine that a payment schedule for a judgment does not happen on the court's own motion, and that there would usually be no need for a debtor to request a payment schedule until after judgment is entered, the time for appeal has expired and the need for a payment schedule exists . . . after judgment.

 

Further, I assume the specific details of a payment schedule, regarding frequency of payment and the amount of the payments, involves consideration of the judgment debtor's employment, financial condition and household needs or, in other words, the judgment debtor's ability to pay. This determination would require the submission of financial statements and evidence which have no part in the action on the debt.

 

So, under what circumstances would a defendant make the request for a payment schedule and submit the evidence needed to support the request prior to judgment in the main action?

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So, under what circumstances would a defendant make the request for a payment schedule and submit the evidence needed to support the request prior to judgment in the main action?

 

You make a lot of assumptions, which may or may not be accurate. You seem to insist that there must be only one way to do this. But it wouldn't have to be done that way. There are any number of ways this could be done. The order after a judgment, like Michigan allows, is one. It could be incorporated into the judgment too. Rules could allow, for example, for a court to delay issuing the judgment to review the defendant's financial condition and then deterimine an installment schedule to incorporate that into the judgment. I don't know of any jurisdiction that expressly provides for that, but then I've not studied the rules for judgments in all 50 states, DC, and every territory and possession of the U.S. either. So I don't foreclose the possibility for it somewhere. Certainly Michigan and other states that allow for an order after a judgment for installment payments could just as easily provided a way to incorporate it into the judgment itself had they wanted. Again, it’s not like it would be really difficult. Rules and practices do vary among jurisdictions, sometimes considerably. I've lived and worked in several different jurisidictions and have seen some of those remarkable differences first hand. I've seen enough to know that thinking how it’s done in once place (or even in most places) doesn't mean that's how it's done everywhere

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Judgement:

 

After reviewing the affidavits filed int his matter, the court finds that the defendant(s) named above is/are not in the military or naval service and that the following are woed to the Plaintiff(s):

 

Post Judgement interest is not awarded.

 

Amount Due on Claims $9774.65

Total Amount of Judgement :  9774.65

Plaintiff's Costs:  401.80

Total amount of Judgement and Costs:  $10,176.45

 

Judgement is rendered for the Plaintiff(s) and the Defendant (s named above must pay the Total Amount of Judgement and costs to the Plaintiff(s).  it is also ordered that the Defendant(s) who must pay the judgement must make weekly paymentws as follow:

 

Amount of Weekly Payment:  $35.00 per week

Date First Payment Due:  December 11, 2013

 

Copy of order mailded to counsel

 

Then the Judge's signature

 

 

As I said, have been paying the $35.00 a week as ordered.  Then last Wednesday a Marshall showed up at my bank with a:

Emeption Cliam Form

Finaincial Institution Execution

 

Showing the amount of the debt minus payments o $735.00 (it's now $905) and an additional fee for the Marshall's service of $1,402.72

 

And since I don't have a lot of money they took what I have which included another $100 fee from the bank for the execution and $263.62 from my account.

 

How can I tell Tobin Mielien and Marhon the law firm in New Haven that I have been following the judge's order to pay every week, that I don't have more than was ordered and what do I have to do now, deal in cash only and close my bank accounts.  And next week when I'm going to be short on my mortgage due to this who pays the late fees for that.  And my mortgage is under water or I'd refinance if I could.

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Connecticut General Statutes Section 52-356d© & (d)

 

"( c) Notwithstanding the hearing requirement of subsection (a) of this section, on motion of the judgment creditor for an order of nominal payments, the court shall issue ex parte, without hearing, an order for nominal installment payments. The amount which shall constitute an order of nominal payments shall be set by the judges of the Superior Court. Such an order for nominal payments may be modified on motion of either party after hearing and consideration of the judgment debtor’s financial circumstances.

 

"(d) An installment payment order shall not be enforced by contempt proceedings, but on the judgment debtor’s default on payments thereon, the judgment creditor may apply for a wage execution pursuant to section 52-361a."

 

Law Blog post, July 2012 (LINK) : Bank Accounts with Non-Exempt Funds Can be Garnished to Satisfy Court Ordered Installment Payments

 

Did you, in fact, make all the installment payments on time?

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All payments made on time, actually ahead of time by one week with record of all of the payments since it is paid by the bank by check. 

Have 15 days to file with the bank for the exemption, will be taken care of tomorrow, need to have signature notarized. 

Asking to have the money taken from the bank accounts exempted which should trigger a hearing,  Will then ask that the Sherrif's fees of $1400 as well as the Fee of $125 for the bank execution be reversed and payments be allowed to continue as is.

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