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Question
Ok.  So I got a wage garnishment notice in the mail.  It was from a company that previously garnished me but over time I have moved 5 times in and out of state(long story)for my daughter's uncovered )or so they protest, birth(it was supposed to be covered, I don't know why it wasn't, by Medicaid).  I haven't seen or heard from them for at least 7 years though it may have been 8.  So I told them I want a hearing to contest it.  They responded with a letter telling me to call them.  I responded back with a letter telling them I want a hearing as they stated in their 1rst letter or a total release of the garnishment.  They responded with a lot of legalese telling me that I don't get to have a hearing as it's based on a garnishment that was already set.  Is that legal?  To tell someone they have a right to a hearing and then tell me I don't in another?  Especially when statute says they are years past the time they should have been able to collect?  And if so shouldn't they have had the legal right to tell me there was nothing I could do about it from the beginning?

Answer
Hi Carrie,

You need to get this default judgment vacated. Another words you need to make a motion to the court which rendered the judgment asking the court to vacate the default judgment.   

You did not say what state you are in, but the actual standards to set aside a default judgment will be found in your states's statutes or rules of procedure.  Procedures may differ for different level courts within the same state.

In New York you would use CPLR 5015 and CPLR 317.

Certain trial judges have little sympathy for even unsophisticated pro se defendants who fail to properly answer and contest a collection action, and are loathe to set aside default judgments.  But state law is generally favorable to allowing a default judgment to be set aside.

A good starting point is the Federal Rules of Civil Procedure, because many states pattern their procedures after these rules.

Rule 55(c) of the Federal Rules of Civil Procedure states that a default judgment can be set aside pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, and most states have a parallel rule.  The federal version of Rule 60(b) states that a final judgment can be set aside for the following reasons:

1) Mistake, inadvertence, surprise, or excusable neglect;
2) Certain newly discoverable evidence;
3) Fraud, misrepresentation, or misconduct by an opposing party;
4) The judgment is void;
5) The judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
6) Any other reason that justifies relief.

Most states enumerate similar grounds, but there are variations, so that it is important to carefully parse your state's standards.

In addition, a number of state supreme courts have stated that default judgments are disfavored and the trial court is vested with broad discretion to set them aside.

Based on the facts you outlined in your question, you are going to want to argue excusable neglect.  For example, Courts have ruled that a pro se defendant's confusion as to court procedure or ignorance over the consequences of a default can be excusable neglect.

The judge may want a meritorious defense to the debt collection case as well.  From what you stated, the debt was past the Statute of Limitations and the amount they sued you for was inflated.  These two issues should satisfy the meritorious defense criteria.  

Hope this gets you on the right track.  If you have any other questions, please do not hesitate to ask.

Jason A. Shear, Esq.
Attorney at Law
Admitted in NY & NJ
Phone:(716) 566-8988  

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Jason Shear, Esq.

Expertise

I can answer questions for residents of New York and New Jersey regarding creditor harassment claims under the Fair Debt Collection Practices Act (FDCPA); credit reporting errors under the Fair Credit Reporting Act (FCRA); debt collection defense/credit card defense; student loan law; and consumer class actions. I can also answer questions relating to consumer debt defense/collection agency defense, specifically pertaining to consumers being sued or harassed by collection agencies or NY collection attorneys. If you live in New York and have been contacted or sued by firms such as: Mel Harris & Associates, Forster & Garbus, Rubin & Rothman, Choi Law Office, Lacy Katzen, Malen & Associates, Solomon & Solomon, Daniels & Norelli, Cohen & Slamowitz, Pressler & Pressler or others; give us a call at (716) 566-8988.

Experience

I have obtained settlements for consumers in NY and NJ under the FDCPA and FCRA. I have successfully defended consumers who were sued by collection agencies/debt purchasers in the New York State courts.

Organizations
National Association of Consumer Advocates (NACA) Law Offices of Jason Shear Consumer Attorneys 3957 Main Street, Second Floor Buffalo, New York 14226 (716) 566-8988

Education/Credentials
BA/BS, Accounting & Political Science, Hunter College. Juris Doctor, Univ. at Buffalo Law School. LLM (Criminal Law), University at Buffalo.

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