Were you just informed by your employer that you are facing a garnishment of your wages? Has your bank just put you on notice that your bank account is frozen due to a garnishment summon that they have just received? Have you reviewed the garnishment summons and concluded that you have never heard of the creditor that is requesting the garnishment? Or, if you have heard of this creditor, you certainly do not recall being sued by them? Don’t despair. You may have an option available to you other than bankruptcy!
Before anyone can garnish your wages or bank account they have to sue you first (unless that person is the IRS. They can skip this step). And if you live in Virginia then that lawsuit will most commonly arrive by way of a Warrant in Debt. Please see my other article specifically on the topic of Warrant in Debts in Virginia titled What is a Warrant in Debt?
The key thing to remember is that the party suing you has to ensure that you are properly served with the lawsuit. And properly served either means that a process server walks up to you and says “are you John Doe?” and then hands you the Warrant in Debt (Yup, just like on Law & Order). Or, a more common way to properly serve someone with a lawsuit in Virginia is to simply post the Warrant in Debt on the front door of the home where that person resides. That last part of the previous sentence is important. The person taking you to court has to make sure that you are served with the lawsuit at your current place of residence, and not where you used to live!
So what seems to occur quite often or at least often enough? The person being sued no longer lives at the address where they were served with the Warrant in Debt. Since they do not know about the lawsuit the creditor simply shows up in court and gets a default judgment. Once the creditor has obtained a judgment, they can begin garnishing you. And the person does not realize what has happened until such time as they are being garnished.
So, what have I done for several clients in this instance? I file a Motion to Reopen Case and to Set Aside Default Judgment with the court where the garnishment is pending and show up for the Hearing on my motion. I then have my client testify that the reason that they never responded to the original lawsuit –that would be the Warrant in Debt- that lead to the judgment is because they have not lived at the address where they were served for months or years. I present evidence to back up my story. As long as the judge is convinced of the facts he will then enter an Order making the previous default judgment void. And since there is no longer any judgment, then the garnishment has to be set aside as well. Meaning, the judgment is made to disappear and the garnishment is quashed.
What’s the downside? Well, under these circumstances the judge will in essence give the creditor a second bite at the apple. Meaning, instead of the lawsuit simply going away, the judge will “make you” answer the lawsuit. But now, instead of the creditor simply getting a judgment against you behind your back and without you knowing what is going on, this time you will have your day in court. You will be able to defend yourself against the lawsuit.
In my case, it has been 6 years since the original judgement, but I was not made aware of it until June of this year. According to the Virginia Motion to Rehear form, it has to be 2 years or less in order to file this motion. Anyway around this limitation?