I was not aware of a lawsuit filed by a debt collector for a very old debt that I don't remember. This has been more than 2yrs ago and they just got around to my employer for garnishments. I was not properly served and was not aware of it to file a response in a timely manner. I am planning to file a motion to set aside. First question is, can I do an ex parte? I am getting my wages garnished all ready and need it to stop. One attorney told me I have to file a regular motion and cannot do an exparte. Also, I'm 110% it is time barred. Will I be able to get my garnished wages back? This other attorney is telling me that I won't get it back. By the time I file a regular motion, they will have the money they need for the debt and I don't know if I will be wasting my time doing a motion and all. Please advise what my rights are. Can I do exparte? Can I get my garnished wages back?
Need help with lawyers experienced in California. After reading a lot, it seems all states have different laws for debt collection and time barred debts.
You can not file an exparte. Find a lawyer in your area to help you. Some lawyers have free first consultations.
You are absolutely correct. There are a lot of different laws for debt collection in different jurisdictions.
If you have grounds to set aside the default judgment, you will need an attorney to file a motion. The filing of the motion will not stop the wage garnishment, however, you may also file a Claim of Exemption with the levying officer, to see if you can reduce the garnishment to a more affordable amount.
An attorney will need to evaluate whether the original lawsuit was time-barred. The fact that the creditor waited 2 years after getting a judgment to pursue a wage garnishment does not make the lawsuit time-barred. The statute of limitations is the amount of time that the creditor/plaintiff has to file the lawsuit. Once the creditor has a judgment, that judgment is enforceable for 10 years, and can be renewed at the end of the 10 years.
If you win the motion to set aside the default, the order granting the motion can request that all funds that were garnished be returned within a certain period of time. However, at that point, you may have to litigate the case and establish your defense(s). You may ultimately win and not have to pay the creditor, but its also possible that the creditor will win, and get another judgment.
This answer is for general information purposes only and is not legal advice. No attorney-client relationship is intended or formed by the posting of this answer. Law Office of Lisa J. Espada * San Francisco, CA *
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