Judgement ... Please help

[OP85063]

What is the name of your state? New York

What is the name of your state? New York

Hi, I have a judgment back in February from Capital One Bank. They now start to garnish my paycheck. The thing is I never knew about the Judgment until they start to take out money from my check. I speak with my employer and they give me a copy of the paper they received, and it does look like legit court papers.

I have another Judgment that I did know about but honestly chose to ignore, and that is being garnish as well from my paycheck.

The thing is, Capital One Bank put on my credit report as a charge-off before the Judgment, can they still try to get payment, or even be able to go to court and get a judgment after the charge it off?

Thanks for your help.

One more thing, my wife and I current bills are $3,150.00, our combing income to bring home a month is $3,442.00, they are currently taking out $502.00, this will make me fall behind or short of my normal living expense, which are (Car insurance, other credit cards, utilities bills, phone bill, gas to go to work and back, rent, food and household cleaning supplies, our one pet and my car is pay out for, but I need it to go to work, I can't get a job closer to home, and my current job is not accessible by public transportation.

Thank you for your advised.

 

[Debt Guy]

The thing is I never knew about the Judgment until they start to take out money from my check.

The only way to find out is to go to the courthouse and ask to see the court file. You need to read the file and determine how you were served. NY is one of those states that allows various forms of service. If you think you were not served in accordance with the laws of NY, then you can file a motion to vacate the judgment. That may not solve your problem. If the service was not proper, the court will vacate the judgment and Capital One will just refile the lawsuit and to at you again.

I have another Judgment that I did know about but honestly chose to ignore, and that is being garnish as well from my paycheck.

Ask your employer. My understanding is that you may only be garnished by one creditor at a time. If there are multiple garnishments, #2 just sits there until #1 is paid off. I do not know NY law. Ask your employer.

The thing is, Capital One Bank put on my credit report as a charge-off before the Judgment, can they still try to get payment, or even be able to go to court and get a judgment after the charge it off?

This is the normal procedure. Chargeoff is merely an accounting term and has nothing to do with the ability of the creditor to collect the debt or your legal liability to pay the debt.



As to the mismatch in your income and expenses -- I only know of three alternatives:

1. Increase income. Get a second job. Borrow from family.

2. Decrease expenses. Give up the cell phone, cable TV, going out, etc. No new clothes.

3. File bankruptcy. Pick a bankruptcy lawyer out of the phone book. Call and talk to them. They will not charge to answer your questions and help you determine if bankruptcy makes sense.

 

[Texas Pooh]

Charge offs/credit reporting issues are completely different from lawsuits and judgments. Both methods of collecting a debt are valid.

A creditor reports debt to the credit reporting agency. If its not paid, the creditor "writes it off" or "charges it off" - in other words, its not considered a collectable debt by the creditor. It reports this to the credit reporting agency, and, usually, sends it to a collection agency at the same time. The reporting information stays on your credit report for the period allowed by law (7 years + 180 days after its past due, I think, but if I am wrong someone will post immediately ). Thus, your credit score is impacted for a long time, and in some cases, you can't get credit (for example, a mortgage) with "charge offs" on your record. So the credit score acts as one way to collect a debt - you are incentivized to pay off the debt to improve your score.

At the same time, the creditor has a certain period of time in which to sue you, called the "statute of limitations" or "SOL". This ranges from state to state. During this period, you can be sued by either the creditor or anyone the creditor sold the debt to. The validity of the debt for lawsuit purposes is the SOL, even if it has been "charged off". Thus, once the SOL has expired, you can't be sued, but the unpaid debt still appears on the credit report.

If a creditor gets a judgment, a whole different set of rules applies. A judgment is valid for anywhere from 10 to 20 years, and can be renewed thereafter.

 

[Texas Pooh]

another thought about garnishments

Debt Guy is right; there are limits on how much can be garnished as a percentage of your income. Your employer undoubtedly has the rules right at hand.

Remember, however, that as soon as one garnishment is finished, the next one will start. Thus, unless you want to be garnished forever, you'll need to follow the advice to increase income/decrease expenses.

Bankruptcy should be a last resort.

 

[OP85063]

A creditor reports debt to the credit reporting agency. If its not paid, the creditor "writes it off" or "charges it off" - in other words, its not considered a collectable debt by the creditor.

OK, the original creditor is Capital One, and they charged it off. But After they charge off I was sued by them too and got a judgment against me, though I never remember being served for this.

Honestly I never even recall having a capital one card, I had a few in college, Aspire, Chase, but not a Capital One card.

If I file to vacate the judgment to prove the method of which I was served, (if it's not serve correctly and the judge vacate the judgment) and they refile to take me to court again, can I ask to get it validated?

As for the other one, I am in the process of working out a payment plan with them that I can afford until next year tax time comes around I should be able to clean that up.


Edit: Also, how do I file to vacate the judgment, I just go to the court house and ask who? and tell them what? After I file that, what happens next?

Bankruptcy:

I was also thinking about this, someone with a little legal advice told me it's also not a bad option for me, because I rent, I don't own a home, my wife got two car, one is paid out for (technically mine, that I used to go to work and back, because where I work there's not pubic transportation) and she got a new truck that has no equity in it, and we're still paying for it. So basically there's nothing they can get from me. We do plan to buy a house, within the next 4 years, but if my credit is not that good it will go under my wife and mother name. Until the bankruptcy removed from my credit then we can refinance and put remove my mom and put in my name.

I do have a balance on a discover card that I am always up to date on always paid on them, I am going to keep paying that.

 

[Debt Guy]

If I file to vacate the judgment to prove the method of which I was served, (if it's not serve correctly and the judge vacate the judgment) and they refile to take me to court again, can I ask to get it validated?

Probably. But, so what? Validation is a durn poor tool to fix this.

Also, how do I file to vacate the judgment, I just go to the court house and ask who?and tell them what? After I file that, what happens next?

1. Go to the courthouse. Go to the Court Clerk's Office. Ask to see the file. Read it carefully. Look for documents regarding service of the summons. NY has very loose standards. You can read here: http://www.serve-em.com/servicemap.html -- just click NY and read away.

2. If, after determining how you were served and determining that the service did not comply with NY law, go back to the courthouse and speak to the Court Clerk. Tell them you would like to file a motion to vacate a judgment. Ask if they have a form for that purpose. Ask if there is a deadline for the filing of the motion.

3. If there is a deadline and you are past the deadline, tough luck.

4. If there is no deadline or you are not yet past the deadline, file the motion to vacate. If it is a fill-in-the-blank form, good for you. If not, you will have to do it the old fashioned way. Ask the Court Clerk if you can see a sample of a motion to vacate a judgment. Use that as a "go-by".

5. Once you file the motion, you will need to mail a copy to the attorney for the plaintiff and file a affidavit that you mailed the copy.

6. The judge will decide what to do. S/he may just sign the motion. Or, he may schedule a hearing. If the latter, it is critical that you attend the hearing and make your case to the judge.

As you can see, this is not a quick process.