how long is the process for garnishing wages?

[smartgirl]

They contact your employer and he has to take it out of your paycheck and send it to them.

[SinkingFast]

And, if you don't have an employer, but you do have a bank acct, they can garnish that too. Just learned that one the other day.

My brother lives in Kentucky. He and his wife draw SSI Disability. Both of them. He has End Stage Congestive Heart Failure and he's on the Transplant List. SIL has raging diabetes and she's had a kidney transplant. They both draw their SSI by direct deposit. Bro got a Money Order and paid his rent. Couple days later went to use his Debit card for a purchase and the purchase request was denied. Turns out there was no money in the bank.

SIL has been in the hospital for nearly 4 months now. Bro couldn't keep up the payments on their car, so he let it go back. Sold for deficit balance and the Collections Company called Bro for payment. He sent what he could but it was not enough. They complained but Bro told them he didn't have money to pay. So the collections company got a garnishment order for their bank acct and wiped them out.

Now here's the kicker,..........

The collections company never sued. Bro was never served. Either by Certified mail or in person by an individual. AND their money comes from SSI Disability which is exempt in BK Law so I thought that would be the case for purposes of Garnishment. So I did a little checking on the laws in KY.

In KY, they have to sue regardless of the amount. Either thru Small Claims or Superior Court, they have to sue. Which means you have to be served. If you aren't served, the collector has to provide a pretty good reason why they need to proceed with the lawsuit "in absentia". Person moved out of State, can't be located, whatever. The Court date is set for 30 days after the subpeona is served or permission is granted for an "in absentia" trial. If the defendant does not appear in Court, a Summary Judgement is entered on behalf of the Plaintiff. The Court sends a Certified Letter to the last known address notifying the Defendant of the Judgement against them. The Defendant then has a 20 day Rebuttal Period before the Judgement is finalized. If the Defendant Rebuts, the process can take longer. Otherwise, the Garnishment Order is issued after the 20 day Rebuttal Period has passed.

Bro never got served. Never got notice from the Court about the Judgement. All they got was a Certified Letter from the Bank with a Copy of the Garnishment Order attached AFTER the funds had been withdrawn.

Also, KY Law specifically states that Exempt earnings such as child support or payments as a result of age or disability cannot be garnished. SSI Disability does fall under that legal exemption.

I told Bro about my little bit of research. Bro called an attny, explained to him what had happened, and sure enough what I'd learned was right. Now Bro has an appt with an attny for a Consult for a Law Suit against the Collections Company.

Bro was so thrilled that I'd done a little bit of research for him. Otherwise he woulda figured they were in the right as far as the law was concerned. He woulda just took it on the chin and made do the best he could. I told Bro that these Collections Companies count on us being ignorant about our rights.

[bkbiker]

[SinkingFast]

That's the only thing we can figure, BK Biker, about Bro's situation. The Collections company lied about serving the subpeona. Or they claimed they could not find Bro.

Bro hasn't been hiding. He's been spending a lot of time at the hospital as SIL has been there for several months. But Bro didn't receive any note from the Post Office saying he needed to come and sign for a Certified Letter or anything like that. And his kids are grown adults. They are at the house off and on. Nobody has stopped by. If the Collections company had tried sending a Process Server, niece and nephew are well over 18 to sign for receipt of the envelope.

Bro did see an attny. The attny has already filed a "Motion for Appearance" by the Creditor. Also, Bro said at the bottom of the copy of the Court Order for the Garnishment, there's a statment about not being able to collect the Garnishment from Exempt monies. SSI was specifically listed as one of the Exempt monies. I said well that should put the Bank at fault too. Bro's SSI is Direct Deposit. The Bank knows where his money comes from. So Bro is gonna call the Bank and have a little chat with one of the Bank Officers about why they paid out funds from his acct that were expressly Exempted on the Court Order.

[no_it_all]

Some more info on this whole process: It is not necessary for a summons to be hand delivered to the defendant. Most states allow a summons to be left at the persons "normal place of abode". Also, a general announcement in the local paper can qualify as having "served the summons". Most likely place to be served is at work. You can also be served by having the summons left with a person over the age of eighteen that lives in the same residence. Some states will even consider the signed refusal of a certified letter to meet the requirement of being served.

The whole <point> of being served is to place notice with the defendant that a court process is about to begin. If a creditor can establish that fact, whether the defendant has been personally served or not is "moot". Courts are well aware that many debtors will hide from a process server, that is why they allow alternative forms of service.

SF...
It sounds like you did your homework on this one...maybe damages to your bro are in order from the collections company???

[aa06a47]

That's the only thing we can figure, BK Biker, about Bro's situation. The Collections company lied about serving the subpeona. Or they claimed they could not find Bro.

Bro hasn't been hiding. He's been spending a lot of time at the hospital as SIL has been there for several months. But Bro didn't receive any note from the Post Office saying he needed to come and sign for a Certified Letter or anything like that. And his kids are grown adults. They are at the house off and on. Nobody has stopped by. If the Collections company had tried sending a Process Server, niece and nephew are well over 18 to sign for receipt of the envelope.

Bro did see an attny. The attny has already filed a "Motion for Appearance" by the Creditor. Also, Bro said at the bottom of the copy of the Court Order for the Garnishment, there's a statment about not being able to collect the Garnishment from Exempt monies. SSI was specifically listed as one of the Exempt monies. I said well that should put the Bank at fault too. Bro's SSI is Direct Deposit. The Bank knows where his money comes from. So Bro is gonna call the Bank and have a little chat with one of the Bank Officers about why they paid out funds from his acct that were expressly Exempted on the Court Order.

Can you check on Pacer to see what was filed against your brother? I know pacer is more than just BK cases, but you may have to register under the court in KY?

[SinkingFast]

Some more info on this whole process: It is not necessary for a summons to be hand delivered to the defendant. Most states allow a summons to be left at the persons "normal place of abode". Also, a general announcement in the local paper can qualify as having "served the summons". Most likely place to be served is at work. You can also be served by having the summons left with a person over the age of eighteen that lives in the same residence. Some states will even consider the signed refusal of a certified letter to meet the requirement of being served.

The whole <point> of being served is to place notice with the defendant that a court process is about to begin. If a creditor can establish that fact, whether the defendant has been personally served or not is "moot". Courts are well aware that many debtors will hide from a process server, that is why they allow alternative forms of service.

SF...
It sounds like you did your homework on this one...maybe damages to your bro are in order from the collections company???

Shoot! I forgot that some places allow for a newspaper notice to qualify. But I didn't read that in anything at the .gov website for KY.

Bro said the attny definitely said he would get Bro's money back and then some. Plus all fees.

The actual garnishment amount was more $$ than Bro had in the bank at that time. So their bank acct over drafted and non sufficient funds charges were added.

Also, Bro doesn't have the money to come even with the Bank so they're charging him $5/day every day he's over drawn. Which will be until the beginning of next month. A Bank person said they would stop that at 18 days and freeze his acct. So the $5/day will stop accumulating then.

And, Bro has checks bouncing all over town. Checks he'd written to pay phone and utilities and such. He's been having to call all of them and tell them what happened and ask if he can pay next month. So there's bounced check charges as well. He's running up a nice little tab at the Bank.

The attny also said Bro could get the $1K Fair Credit Practices award, but he'll have to sue to get that.

[SinkingFast]

Can you check on Pacer to see what was filed against your brother? I know pacer is more than just BK cases, but you may have to register under the court in KY?

Thanks for the suggestion, Aa!! I hadn't thought of checking on PACER.

I'll have to do that and see if I can find his/the Collector's case!