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Originally Posted by charlene
Iam posting this question A friend of mine is in desperate need for help for a wage garnishment, to make a long story short-- Management co. hires block rathbone in cleveland ohio to collect- The management company is given a 30 day written notice of moving a month to month lease. Lwtter from attorney debt collector sent, answered in a 5 day period attorney debt collector goes to court plantiff and defendant not present magistrate signs order to garnish wages. Iam at a total los here if any one can help this gentleman it would be greatley appreciated as I just do not know how.
Charlene
his e mail is fbaliga@netscape.com
this man is facing poverty of the worst kind here in Ohio and stands to lose is job in Cleveland |
What are exempt wages?
Exempt wages are those wages that cannot be taken from you to pay a debt. Your wages cannot be garnished unless your take home pay after taxes is more than $292.50 per week.
How do you stop a garnishment?
Go to the local county Circuit Clerk's office:
- Request a form called "Notice of Motion For Wage Deduction Exemption Hearing".
- Request your small claims or other court file from the Clerk.
- Fill in the top part of the Notice of Motion form so that it matches the documents in your file.
- Ask the Clerk to schedule a hearing for your Motion.
- Complete the rest of the form, including the date of the hearing, the name and address of your employer, the name and address of the attorney for the creditor (person you owe money), your name and address, and the Proof of Service portion.
- Have the Clerk file your Motion.
Send a copy of the Motion to your employer and the attorney for the creditor either in person or by mail. How you send a copy of the Motion should match what you stated in the Proof of Service paragraph on the form.
What happens at the hearing?
Your employer and the creditor's attorney do not have to show up for your hearing.
At your hearing, you should first tell the judge that your wages are exempt because your pay, after taxes, is less than $292.50, and that you want the wage garnishment order stopped. Present copies or the originals of your paycheck stubs to prove this.
If your employer still has money that they have not yet turned over to your creditor, you may be able to get that money back if you can prove that your wages were exempt when they were being garnished.
If you intend to ask for the money back, get a letter from your employer stating that they still have the money in their possession which they have yet to turn over to the creditor and how much money they have.
No. 2: Lack of Jurisdiction
The fact that your wages are being garnished under a Wage Deduction Order means that there was a lawsuit filed against you and you lost. But if the court that entered a judgment against you did not have jurisdiction to do so, you can have the judgment vacated (thrown out) and that will also stop the wage garnishment.
What does it mean that a court "lacks jurisdiction"?
Every lawsuit must begin with the defendant receiving a summons (being "served" with a summons). When you receive the summons properly, a court has jurisdiction over you. There are 2 ways the sheriff (or sometimes another person) can serve you. They can:
- Hand the summons to you personally, or
- Leave it where you live with someone else who lives there who is at least 13 years old
If neither of these things happened in your case, and you never appeared in the case, the court may not have had jurisdiction over you so there may be a way to stop the garnishment.
How can I stop the garnishment where there is a lack of jurisdiction?
You need to file a "Motion to Quash the Summons and Vacate the Judgment". If you win with this motion, you can have the garnishment stopped. There is no time limit on this motion, but you want to do it as soon as you learn of a garnishment of your wages. Go to the courthouse and look at the court file. Find the "Return of Service" form. This should have been filled out by the person who served you with the summons. Read the form to see who they claim to have served with the summons and where and when. Then prepare your motion.
The motion has to tell the judge
three things:
1. that you were never served with a summons
2. that no one who lives with you and who is 13 or older was served with your summons, and
3. that you never appeared in the lawsuit
Your statements in this motion have to be notarized and you may need to add details to help convince the judge. For example, if the sheriff says (in the Return of Service) that he served you with summons at 1276 Main Street but you live at 2276 Main Street, you should explain that in the motion and attach your utility bill from 2276 Main Street to support what you say. Or if the sheriff says he served a "22 year old" and you are a 60 years old, you should point that out in your motion.
Find out from the Clerk of the Court how to file the motion and how to set it up for the court call. And send a copy of the motion and a notice to the other side of the case, telling them when the motion will be presented to the court.
What happens at the hearing?
You need to tell the judge that you want to have the judgment against you vacated for lack of jurisdiction. Then explain what you put in your motion as to what went wrong with the service of summons, such as they served the wrong person. If you have proof, like a utility bill or a witness, now is the time to present it.
If the judge agrees that service was improper, he or she should quash the service of summons, vacate the judgment that was entered against you, and stop the wage garnishment.
You have stopped the garnishment
but now the plaintiff can start the whole lawsuit over again by serving you with summons properly.
What strategy?
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