AP notice received today ... scared ... stressed ... long story thanks for helping

[despritfreya]

Hi, Des. Has the law recently changed with regard to judgment renewals? I know that when I was sued by Gurstel Chargo/Discover Bank, I was advised (by an attorney) that funds in a bank account were exempt to only $150, and that judgments could only be renewed once. So are you seriously saying that a consumer creditor such as the one in this case can now follow a person to the grave?

BC,

The exemptions changed in September. 2013.

The renewal of judgments has been the law for as long as I can remember so the attny you spoke to was incorrect. I have dealt with this issue a few times because creditors tend to miscalculate the 90 renewal time frame thinking they run the 90 days based upon the original filing, not from the day the renewal is filed.

Des.

[bcohen]

Hi, Des. Has the law recently changed with regard to judgment renewals? I know that when I was sued by Gurstel Chargo/Discover Bank, I was advised (by an attorney) that funds in a bank account were exempt to only $150, and that judgments could only be renewed once. So are you seriously saying that a consumer creditor such as the one in this case can now follow a person to the grave?

[despritfreya]

Anything over the pathetic $150 exemption amount is fair game, and if your account happens to be levied with more than $150. . . I suggest you keep no more than $150 in the bank. . . If they do renew, then the judgment will remain enforceable for another 5 years, but after that it cannot be renewed again, even if there is unpaid balance remaining.

While I have already sent a PM to OP, I wanted to clarify/correct the above two points.

1. The state exemption for funds in a bank account is now $300.00 per person ($600.00 for a married couple). Still not a lot of money.

2. Pursuant to ARS 12-1612 (E), a properly renewed judgment is good indefinitely. “Additional and successive renewal affidavits as provided for in subsection B may be made and filed within ninety days of expiration of five years from the date of the filing of a prior renewal affidavit.”

There is tons of case law dealing with renewals. Many creditors get caught on the timing by not properly calculating the 90 day period but the judgment, if properly renewed, can be good for many, many, many, many years to come until paid in full.

Des.

[scbendel]

Thanks for the heads up!
So for example: I only have $50 in my bank account right now.
How does the levy process work if I have direct deposit? If they garnish my paycheck for 25%, can they then turn around and take the rest of my paycheck from my bank account? Or is the levy a one time thing? I'm not sure exactly how that works. Will I have time to empty my account after the direct deposit hits? Kinda seems like totally unfair double dipping IMO.

Also, when requesting exemptions for the payroll garnishment, I'm also being hit for child support... Can that come into play also?

Thank you!

[bcohen]

They already have a writ of garnishment. I'm more scared about a bank account levy...is that something they will do even if they are garnishing my wages?

I'm a head of household, and I've been reading I can file an exemption with the civil court to reduce or remove the garnishment completely...does anyone have experience in this?

The exemptions here in Arizona are some of the worst in the nation, and unfortunately, there is nothing to prevent a judgment creditor from garnishing your wages AND levying your bank account--at the same time. Although there is a process to object to the 25% garnishment on hardship grounds, in which case, the judge will likely lower the amount garnished from your pay to 10%-15%, there is no option to protect money in a bank account. Anything over the pathetic $150 exemption amount is fair game, and if your account happens to be levied with more than $150 in it, the bank will likely eat up the remaining amount with bank fees. (Interestingly enough, if the bank receives a writ of garnishment and there is LESS than $150 in your account, then the bank will file a request for release of garnishee on the grounds that no funds are available, and you will NOT be charged any bank fees for this.)

I suggest you keep no more than $150 in the bank until this is resolved, which will basically mean until either the creditor recovers its full balance plus interest through garnishing your wages, or alternatively until the judgment statute of limitations expires. The only good thing about judgments in this state is that they only last for 5 years, and can only be renewed once. So if the creditor fails to renew when the 5 years expire, you are home free. If they do renew, then the judgment will remain enforceable for another 5 years, but after that it cannot be renewed again, even if there is unpaid balance remaining.

[scbendel]

Malice was indeed hard to prove, and they couldn't attack us directly as we were very honest and straight forward. The judge actually said he appreciated my candor, which I thought was a good sign. The opposing counsel couldn't even prove his case until the closing arguments, when he cited 4 cases that stuck us with inferred malice, enough in AZ to convey actual malice.

It sucks, but I'm glad it's over.

Now the fight to protect what little money we have behind...and I'm afraid it's going to be a longer fight than this last three years.

[justbroke]

Trial came and went. I thought we did a great job of explaining our position. We rested our case and felt good that it was over. Well, we received the ruling today, and we lost. Just proves my theory that money can buy you anything. Had I been able to afford an attorney, we would have had a way better chance. Anyhow, I don't know what happens next. They already have a writ of garnishment. I'm more scared about a bank account levy...is that something they will do even if they are garnishing my wages?

I'm a head of household, and I've been reading I can file an exemption with the civil court to reduce or remove the garnishment completely...does anyone have experience in this?

No way to tell how they will choose to execute the judgment. I can't tell you what the requirements are to declare Head of Household for purposes of a Writ of Garnishment once the creditor attempts to collect. A smart collector would go after everything that they can levy or garnish. Again, I don't know what the specific are for your State. (Des will probably pop in at some time and let us know.)

I am sorry to read about your loss in the Adversary Proceeding. They are tough and when a creditor typically files an AP (complaint) they are usually pretty sure that they have better than a 50-50 chance of winning. It's just the nature of the trial system.

So it was likely decided on the malicious part since you earlier wrote that the Judge even mentioned that the plaintiff had already proven the "willful" component. That was a tough one.

[scbendel]

Thank you!

[bcss]

I sorry to hear that you lost the case. I've been following it. I'm sure others will have some answers to your questions. Wish you the best.

[scbendel]

Trial came and went. I thought we did a great job of explaining our position. We rested our case and felt good that it was over. Well, we received the ruling today, and we lost. Just proves my theory that money can buy you anything. Had I been able to afford an attorney, we would have had a way better chance. Anyhow, I don't know what happens next. They already have a writ of garnishment. I'm more scared about a bank account levy...is that something they will do even if they are garnishing my wages?

I'm a head of household, and I've been reading I can file an exemption with the civil court to reduce or remove the garnishment completely...does anyone have experience in this?

Thanks for watching and thanks for all your help!!

[scbendel]

So trial is coming up next Tuesday the 25th. I haven't done much in the last two months because honestly, when I think about the trial, I get headaches and shakes and I can't sleep. I just want it to be over with, win or lose (but hopefully win).

I did find a piece of evidence that we submitted of the instance company saying that they wouldn't pay the 2nd company because they already paid the first company for the work, thus we had to pay it out of our own pocket.

Can anyone give me pointers about what I should do to prepare for the trial? Do I need to prepare opening and closing statements, or is this basically them grilling me and me answering questions?

Been awhile, thanks for listening.

[scbendel]

Me too.
Thank you again!

[despritfreya]

SC,

There is a trial set in the below case for Thursday. There is a 523(a)(6) aspect to the case but I do not know any details. It appears there was an attempt to continue it but the judge said No. . .

2-11-ap-00826 (there is also a companion case but I lost the case number)

Pull it up on PACER. You can call the Court to see if it is still a go.

Ok, got to get back to work.

Des.

[scbendel]

Des you are amazing! Thank you.

[despritfreya]

No jury trials in bk court.

At trial it will just be you, your spouse, any witnesses you or the other side might call, the other side and. . . the Judge. Your demeanor will be critical for your credibility. You get to explain why things happened and how your actions were not malicious. The other side will try to do the opposite by its cross examination of you and any witness you may call.

Go back to researching and focus in on what constitutes "malicious" conduct in the 9th Circuit.

Over the next few weeks I will watch the Court calendar for you. If I see a trial come up that might help you see how things work I will shoot you a PM. You might want to just sit in the courtroom and observe - nothing wrong with that.

Des.