Expert: Jason Shear, Esq. - 10/8/2008

Question
My daughter was in a bad relationship which ended in divorce. According to the writ for garnish., it says that the plaintiff recvd. a judgement of $1411.00 back in 2006. Interest to date: $353.00 Postjudgement costs: $140.00 The debt was from a joint acct. in her and her previous husband's name. He cashed a fraudulent check, and withdrew the money which accounted for much of the judgement. The husband was the primary on the bank acct. I don't believe this debt was brought up at the divorce proceedings. Daughter did not appear at first hearing due to personal issues. Recently, Aug. 08 recvd. a nonperiodic garnishment order, signed and sent to Mother's residence as they could not locate her residence.
 My question: why is she being held solely responsible for debt and not x-husband? And, can she get the debt "validated" or is it too late? What would you advise? Thanks.

Answer
Terry:

Sorry to hear about your daughter's situation.  First, let me start with the "validation" issue.  The law regarding a debt collector being required to validate a debt involves the debt collector's first contact with the consumer.  You state she has a judgement against her, so we are well past the point in time to ask for validation.  

Her best defense would be to get the judgment vacated.  Grounds for getting a judgment vacated include not being properly served or not having notification of the lawsuit against her.  To get the judgment vacated you need to contact the court in which the judgment was rendered.  Some courts have a simple form a pro-se defendant can fill out or you can ask the court clerk to see a "motion to vacate" from another case that was done for that court and copy it, making it applicable to your daughter's case.  Be sure to bring change for photocopying and be extra nice to the court clerk so that he or she will have a better attitude when helping you.

If you get the judgment vacated, the attorney will have to bring their case again.  If she was on the account there is a good chance she is responsible as well, depending on the laws of your state.  Her best defense would be to challenge to amounts you mentioned.  Collection agency and collection lawfirms are notorious for adding illegal fees, interest, costs, etc. when collecting on bad checks.  What you need to do is just Goggle "bad check laws" and the website will give you the legal amounts that can be collected on a bad checks for your state.  

If your daughter's ex-husband is employed or has any assets, she should sue him in small claims court for the expenses she had in conjunction with this matter.  

Good luck.  I hope this gets you on the right track.  If you require anything further, do not hesitate to ask any follow up questions.

Jason Shear
NY Consumer Attorney
716-566-8988