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Can I use SOL for my wage garnishment?

Sycamore, IL |

I got a wage summons from my employer in the mail, and I contacted the law office of the plantiff to inquire about it. I was told by one of the representatices that this is a credit card from 2004, and that a judgement was defaulted back in 2007 and they are now seeking repayment. I have until Feb 7 2013 to file an appeal/objection which I intend to do, I have never received a summons to go to court and the representative I spoke to stated that they had a phone call with me stating I was not going to court, which is highly unlikely. They even had the wrong address on the summons form I received in the mail. The credit card is not on my credit report and the last known activity was back in 2004 according to the debt collector. If I cannot use the SOL in my defense what are my options?

Attorney Answers 5


You will need to get the default judgment overturned for lack of personal jurisdiction. This will require obtaining the court file to see what evidence the creditor supplied to show that you were personally served with the complaint and summons and then setting a hearing to set aside the judgment. Once the judgment is set aside you will be able to attempt to raise the statute of limitations defense.

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The SOL is not the issue here. If you are talking about a summons for the original case, then you might be able to vacate the underlying judgement. If you are talking about a summons for the wage, that is sent to the employer, not you. Your facts are unclear but if you speak to a collection attorney in your area, you should be able to get some answers. If the judgment was properly entered, you may have no recourse. On the other hand, if you were never given the opportunity to defend on the underlying case because of faulty or no service, or if the Plaintiff has bricked the wrong person"s wages, then you do have a right to contest these proceedings. A lawyer should be able to help you.

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The other attorneys are correct. You need to get the judgment set aside first. A default judgment has the same impact as if you had lost after a jury trial. You should also consider seeing a bankruptcy attorney.

I would add that you should consider filing a claim of exemption to block or reduce the garnishment until you can get a judge to rule on a motion to set aside the judgment. Again, see a local attorney to learn about the proper procedures.

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Contact an attorney who specializes in consumer law about this matter. Most will provide a free consultation. You will have to get the judgment vacated if you want to raise any defenses, and whether or not you can depends on whether they had proper service. If they did not have proper service, and you get the judgment vacated, they may not have the documents they need to prove their case if they are a debt buyer. A consumer attorney can also tell you if there have been any violations of the Fair Debt collection Practices Act, which might give you a claim against the debt buyer and/or their collection attorney.

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You will have to quash service and set aside the judgment. That will reopen the case. You dont have defenses in post judgment proceedings, the question is whether the funds/property the plaintiff is seeking are exempt or not. So, getting over the procedural hurdle of quashing service is key. If service is quashed, then the judgment is void and subject to being set aside.
There are some defenses you may have but, as the SOL, technically, they brought suit within 5 years. But, as Tara mentioned,after repenting, they may have difficulty in finding the documentation to prove your case. I highly suggest you contact an attorney to help you in this endeavor.

William Lohrman
Law Office of William D. Lohrman
487 Grape Vine Trail
Oswego, IL 60543
Ph: 630.849.6196
Fax: 630.348.1323

General legal advice is offered for educational purposes only. A consultation with a qualified attorney is required to determine specific legal advice as to your situation and applicable law. We are a debt relief agency and we help people file for relief under the bankruptcy laws.

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