Expert: Michael Brotherton - 10/18/2008

Question
My husband and I have a joint checking account.  This morning, a charge was made against our account for a heft sum, wiping out our account and putting us at a negative balance.  I called the bank and they said it was a garnishment from Capital One.  We have been paying Capital One through an attorney for the past 3 years and never missed a payment.  Our records indicated that we only owe $656 remaining balance.  The garnishment took out over $1400.  We have never recieved a judgement from a court nor notification that our account would be garnished.  DO we have any recourse in this situation?  Is there any way to get the money put back into the account?

Answer
Some states allow for bank accounts to be frozen prior to a judgment but not seized. I am curious whether the creditor obtained judgment somehow without notifying you. You first need to contact the bank and see if you can get a copy of their garnishment notice. Then contact the courts to see if the creditor has a judgment against you. FInd out who the attorney is and date of judgment, case number, and any pertainant information.

Most states also allow for a garnishment hearing if you dispute the garnishment. You will need to ask for the hearing immediately and make sure you follow the courts instructions for requesting the hearing.

If they obtained judgment without notice you may also file a motion to overturn the judgment for failure to serve you properly. It would be a good idea to seek local legal counsel. If the garnishment was improper then you may be able to get your money back.

Also, each state has certain exemptions of money and assets that cannot be attached. Ask the courts what those amounts are and the process for getting the exemption.

First things first, ask for the hearing and get your money back.

If I knew which state you are in I may be able to give more information or offer direct assistance. We are now a full service law firm and may be able to provide assistance to you directly. If you need help call 937 372 8581.

Good luck.