Question: My current employer received a Writ of Continuing Garnishment on me. I have requested verification of the original debtor and know debt has exceeded the statutes of limitation. What are my options, the debt is being reported as collection with no judgments or public records. Thank you
Answer: A creditor or collection agency can sue you for an unpaid debt that is within the statute of limitations. Some collection agencies will sue you for a debt even when the statute of limitations has passed. If that is the case, it is still your responsibility to answer that lawsuit.
You cannot ignore a lawsuit even if the statute of limitations has passed. But when answering the lawsuit, you can use the expired statute of limitations as an affirmative defense.
If you do ignore a lawsuit, the collection agency can obtain a default judgment against you. You would have to seek legal advice and/or hire an attorney in order to petition the court to have the judgment vacated based upon the expired statute of limitations.
In general, a creditor or collection agency would need to file a lawsuit, win the lawsuit and obtain a judgment against you prior to your wages being garnished. Once a collection agency files a lawsuit they are required to “serve” you with a copy of the summons and complaint for the lawsuit.
If the collection agency filed a lawsuit and obtained a judgment default without your knowledge, you may be able to get the judgment vacated.
The writ of continuing garnishment should have a caption on it which shows the case number. If not, this could be a false document and if that is the case, your employer should not garnish your wages.
In most cases a creditor or collection agency must win a judgment against you and get a court order before it can garnish your wages or garnish money in your bank account. The only instances I am aware that wages can be garnished without a court order is when the Internal Revenue Service (IRS) garnishes your wages or the Department of Education (student loans) garnishes your wages.
I would advise you to first verify whether or not a lawsuit was filed against you and a judgment was obtained on behalf of the collection agency. If not, I really do not see how your employer can comply with the writ of garnishment.
You can make a complaint with your state’s Attorney General and the Federal Trade Commission if the collection agency is using a false document in order to garnish your wages. This is a serious offense.
It is important that you seek competent legal advice as this matter is very serious. The organization, Naca.net has state-by-state listings of consumer law attorneys who may be able to consult with you. The best of luck to you.