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Friday, December 12, 2008
Garnishment against pensioners is illegal.
Subject: Capitol One Credit Card debt from 2002Question: QUESTION: I have just received a letter from my bank here in NY that my checking account funds are being withheld, and a copy of the Restraining Notice and Judgment for a Capitol One CC debt from 2002 when I lived in Florida. The account is a direct deposit $459.00 pension account only.

I immediately called the banks legal department and then the collection company and spoke to the attorney there who is handling my case. I explained to him that I paid on that CC only the charges that were mine and not the charges that were scammed by someone other than myself or anyone I know, and the charges were dismissed against me. However, he claims that I now owe for those charges, plus all the late fees since 2002. The amount of the charges were less than $1000 and the total debt is now over $6000. I shredded all my paperwork from Florida when I left there and do not have any proof of the CC statements. Big Mistake!

I relocated back to New York State in 2002. I am 65; retired in 2000; divorced in 1991 and pay QDRO from my pension to my ex that leaves me with a $459/month pension; have no real property; a 1996 Blazer with 135,000 miles in fair to poor condition; rent apartment with a 72 yo female companion where we share the expenses.

Any advice you can give me would be appreciated. Thank you.

ANSWER: That's a tough one to say the least but it also can be turned into a great benefit to you. They have illegally garnished your pension funds. They can't do that. It is against the law for them to do that and you can make them return all the money and pay dearly for having done it. You have to file in federal court but you can do that for free by filing in forma pauperous. Of course, when you win you will have to pay the filing fee of $350 but you can make them pay that for you on top of having to give back all the money they took. You might also be able to include the bank as a co-defendant although I wouldn't guaranteed that. After all, they were an accomplice to the act. They obeyed the court order and knew or should have known that they could not legally allow that to happen.

The lawyer and the plaintiff would have to pay you some heavy damages and attorney fees as well. You can also make them vacate the judgment and garnishment proceedings that allowed it to happen to ensure that it don't happen again. And you can learn how to do it without hiring a lawyer to do it for you. That way you get the attorney fees as well. You should end up with at least a couple of thousand or more on top of getting all your money back.

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---------- FOLLOW-UP ----------

QUESTION: 1) Should I contact the collection company and tell them what you have advised me?

2) Should I contact my bank also?

3) Can I use the entire question and answer in my contacts with the collection company and my bank?

Thank you.

ANSWER: Should you contact the collection company? Absolutely not!
Should you contact your bank? Yes! Tell them they had no right to have complied with the garnishment order and you demand your money back. If they refuse then tell them to expect a summons to federal court.

Entire question and answer? I don't follow you there.

---------- FOLLOW-UP ----------

QUESTION: Just wanted you to know, with the advice you gave me, before I received your last reply to my 3 questions, I corresponded with my banks legal department and the managing officer of the collection agency.

That same day, the agency sent my bank a release on my account. Wow!

My question is, what can I do to get the judgment removed?

Thank you so very much.
click here to enlarge
That's going to be much more difficult and maybe impossible. The first question has to be how long it has been since the judgment was filed?
There are probably several more questions that will have to be answered but in the end the only possibility of getting the judgment removed will most likely end up with your having to file a federal lawsuit against them. In the first place, Cap One probably didn't file that lawsuit against you even though they were named as the plaintiff. If that is true then a 3rd party debt collector working on assignment for Cap One was the actual plaintiff. Of course, the lawyer that filed it was also a 3rd party debt collector. I'm wondering whether or not there was any affidavits filed with the court. If so that could well be the way to develop one or more causes of action against the lawyer and the debt collector. If we can figure out a way to get them into federal court then it is highly likely that we can force them to remove the judgment as part of the settlement agreement. You still have a cause of action against the debt collector and the attorney for an illegal threat to garnish your pension. That may very well be the strongest cause of action you will be able to get. You can file in forma pauperus since you are on a pension. If you win you will have to pay the filing fee but you can make them pay it to you before you have to pay it to the court. That's $350 and I've never seen a case where that couldn't be arranged. You very well could come out of this with a nice cash settlement as well as getting rid of the judgment. And you won't even need to hire a lawyer to do it yet you can get paid the same as a lawyer would get. That's several hundred more dollars in your pocket.
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