Ask Me Help Desk - Writ of execution

1) Is there a way to find out if a writ of execution was submitted to withdraw money from bank account?
2) I want to withdraw money from my 401 k to pay some debt down, if there is a writ can they touch that money ?

Contact or visit the clerk of the county clerk where you live and ask; also, contact the bank and ask. I believe early withdrawals from a 401k are subject to income tax, maybe penalties; but not claims by creditors.

If you deposit the funds from the withdrawal in a bank, then its subject to attachment.

I would not recommend using 401K money to pay down debt. The tax bite and penalties will usually more than offset the interest cost.

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Are the banks or courts obligated to tell me if there is a writ if I ask them ?

Quote:

Originally Posted by jj333

Are the banks or courts obligated to tell me if there is a writ if i ask them ?

Hello j:

No.

Your bank isn't obligated to tell you if there's a writ, but I'm sure they would if you called them.

However, the best evidence of there being a writ is an empty bank account. If it ain't empty, their ain't no writ. I'm not sure which bank account you're referring to. Is it your normal checking account that you're contemplating transferring the 401K funds into?

Dude. If you have a judgment floating around out there, I would NOT put funds into an account that is subject to seizure.

If you really really want to find out if there's a writ, you can certainly see the file if you go to the courthouse. These ARE public records, but the clerk on the phone will not do that for you.

Unlike George, I'm not sure that your retirement account ISN'T subject to seizure.

excon

Hey JJ333,

First of all, I agree with Scott in as much as you should NOT use 401k funds to pay off debt. There is almost no justifiable reason for it unless you are going to lose (Notice this word is NOT spelled "loose") your house or something and you feel that if you save it, you could move forward with the payments and keep being able to make them.

Second, yes the banks and courts ARE required to disclose the presence of a writ of execution.
However, you should have received a copy of the writ from 1. The person/company you owed the money to AND 2. the bank it was served on.
These were required to be served on you at the time the writ was served on the bank.
The person you owed the money to was required to have you served with these papers in person (or through another person over 18 residing in your home.)
If it wasn't, you can obtain a copy of it from the bank or the clerk of the court by going to either institution and requesting one.
I hesitate to tell you what you can do if it wasn't served on you, because the chances are that you really do owe the money to whoever sued you because they do have a judgement... and they don't usually just award those to whoever tries to get one... however, that said, if they didn't serve you AND YOU THINK THERE IS A VALID REASON why they should not have been able to take the money, then you can dispute the writ and possibly even the judgement itself by going to the clerk of the court and filing a dispute... the dispute will have different names in different counties/states.

Third, your 401k is protected as long as you don't remove the funds and put them in a bank... unless you happen to have a business account that they don't know about and that is not subject to the judgement you are obligated for. (Meaning the business was not listed as a respondent in the suit or added later by the judge.
In most states, an IRA is NOT protected and neither would a 401k if you are the owner of the company that owns the 401k... but if it is a standard 401k through your regular employer, it is protected.

One thing to keep in mind... if your employer has a Garnishment currently in effect when you take the money from your 401k, that can technically be determined to be funds eligible for attachment... BEWARE and ask your employer before signing if you are under garnishment or even if you suspect one might be pending!

Even if you have a "Hardship" reason for early withdrawal, you will still have the pay the standard 10% Early Withdrawal fee plus income taxes, etc.

Quote:

Originally Posted by cttr22

However, you should have received a copy of the writ from 1. The person/company you owed the money to AND 2. the bank it was served on.
These were required to be served on you at the time the writ was served on the bank.
The person you owed the money to was required to have you served with these papers in person (or through another person over 18 residing in your home.)

This is not universal. In my experience, there is no requirement that the debtor be served notice of an attachment of an asset in most juridictions. The debtor is, asummably, aware that a judgement exists against them. That should warn them that their assets are subject to attachment. The debtor is entitled to see a copy of the court order that was served. But not necessarily to have one sent directly to them.