Own up to debt before fighting back

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Dear Debt Adviser,
I had a bank credit card and the company is currently garnishing money from my bank account. Yes, the debt is mine, but I am wondering why money is being garnished when I never signed a summons for court.

Of course, now I have zero dollars in my account because of this garnishment. I need to know if I open an account at another bank, will my money start to be garnished there, too? What can I do about the garnishment if I did not sign, nor was I aware of any legal documents?

I am in a better position now to start making payments toward the debt; I just need to get rid of the garnishment.
— Doug

Dear Doug,
Yes, the debt is yours — 100 percent yours. I want you to begin with that.

You are now pretty far down the road of a situation which you created and are now complaining about the bumps you are encountering.

Still, no one deserves to be taken advantage of, no matter what the situation. So, here’s some advice on what to do with the mess you are in without pointing any fingers.

To place a garnishment order on your bank account, your creditor would have been required to go through the court system and receive a judgment for the amount of debt owed. Once a judgment is issued, the creditor can then petition the court for an execution judgment which can be used to place a garnishment order.

A garnishment is definitely something for which you should have received notice from the courts, usually through a constable who handles the notification.

I spoke with Chris Lefebvre, an attorney with the Consumer and Family Law Center in Pawtucket, R.I. He loves to defend the little guy caught up in the legal system.

Lefebvre has had other clients tell him stories similar to yours. According to Lefebvre, a creditor cannot simply garnish accounts or wages without commencing some type of collection action through the court system or through an arbitration forum. In either case, the consumer must be given some notice.

Unfortunately, Lefebvre’s experience has been that some creditors use constables who simply throw the documentation in the garbage and say they served you or were unable to find you after a diligent effort.

If you feel this may have happened in your case, Lefebvre recommends you do some research and determine which court issued the judgment. Your bank will have the information regarding your garnishment and you should be able to follow the paper trail from there to learn which court was involved.

Once you know the court, go to the courthouse and review the documents in the file pertaining to your judgment. Make sure to review how the process was accomplished.

Most court clerks will be willing to work with you to determine whether or not a summons to appear was served regarding the case. If the court procedures were not followed correctly, you will need to let the court know immediately.

At this point, it would most likely be in your best interest to hire an attorney to determine your rights in the matter and to see about having the garnishment removed. Do this prior to opening any new bank or credit accounts.

With that said, I don’t want to let you off the hook for this situation and put all the blame on the collector. I have to wonder how many late notices you received, how many collection calls were made and how many statements you left unopened over the months leading to the debt charging-off and being referred to an attorney.

Also, it may be the case that attempts were made to notify you of the court hearing but for any number of reasons, they were unsuccessful. 

In any event, my experience tells me that while you may need a lawyer to get you out of this legal morass, you will need to take responsibility for your own actions going forward to turn this from an expensive tale of woe into a positive — but expensive — learning experience.