Ask Me Help Desk - Levied bank account

Ok. My husband (before we were married) dealt with a very shady car company to purchase a vehicle. He was supposed to just be inquiring about a vehicle. He did not have a down payment so the car company told him to post date a check. He wasn't comfortable doing that because he was worried something would go wrong and he wouldn't have the funds. They told him not to worry that all he had to do was call and they would hold it longer. Well, the time came and he called and asked that they hold it. They didn't. The check was returned. When I came into the picture they were harassing him and I explained to them it was against the law to solicit a postdated check to begin with and that if they proceeded in court, so would we. The calls ceased. Here it is two years later and there is a levy on our account (which by the way consists of my child support payments from my exhusband and his GI bill from the VA which are exempt. We never were served for a court hearing and he's lived at the same address as was on the contract papers with the car company. I went online and found out they served an address that was listed on the contract as a previous address, and have subsequently kept serving that address knowing full well he didn't live there. I have know idea what to do. I cannot stop my child support payments in time or his VA benefits from being direct deposited. What can we do?

First thing to do is to protect the exempt funds. A levy or judgment is ordered by a court; banks have to comply with the order, no matter what funds are in the account. The burden for that part of the problem lies with you. You can a file a motion with the issuing court and provide proof that the funds are exempt. If you can afford an attorney, it might be to your benefit because an attorney can usually navigate through the legal maze a little bit faster than you would. You should be able to contact the bank and find out who it is that petitioned to get the levy. The reasoning here is so that you can get a current creditor and address to fight, not a name on a document from some time ago. Undoubtedly, the creditor sent notices to the wrong address deliberately. It's a classic move; it's easier to obtain a judgment when there's no response. I would also suggest opening another account in your name only asap and having your direct deposits transferred. It might prevent future headaches. Joint accounts with levies and judgments--it's an absolute nightmare. Good luck to you.

Quote:

Originally Posted by XTC832

First thing to do is to protect the exempt funds. A levy or judgment is ordered by a court; banks have to comply with the order, no matter what funds are in the account. The burden for that part of the problem lies with you. You can a file a motion with the issuing court and provide proof that the funds are exempt. If you can afford an attorney, it might be to your benefit because an attorney can usually navigate through the legal maze a little bit faster than you would. You should be able to contact the bank and find out who it is that petitioned to get the levy. The reasoning here is so that you can get a current creditor and address to fight, not a name on a document from some time ago. Undoubtedly, the creditor sent notices to the wrong address deliberately. It's a classic move; it's easier to obtain a judgment when there's no response. I would also suggest opening another account in your name only asap and having your direct deposits transferred. It might prevent future headaches. Joint accounts with levies and judgments--it's an absolute nightmare. Good luck to you.

Thank you for the advice. I have put all the paperwork together in a file and my husband is going to court first thing Monday morning to file for exemptions. We also have the paperwork proving they did not serve our last known address. The only thing I don't know if it's a problem that I am not on my husband's account yet. My deposits just go there as we were just married and hadn't done it yet. Will that pose a problem? I have all my court documents showing the money going in there is mine as well as his GI Bill benefits explanation letter. Also, once this goes to court does it just release the funds for right now? Is this something they can keep doing over and over until the garnishment hearing? That is not until April 10.

Forget the exemptions. What you want to do is file a motion to vacate the judgment on the grounds of improper service.

It sounds like you have a copy of the contract. So you should easily be able to prove that they had a correct address and deliberately sent service to an incorrect one. Assuming the judge vacates the motion and I don't see why they wouldn't given what you have told us, then you ask for an order lifting the order of attachment. And bring that to bank. That will be your most quick way to get your money back.

You then inform the bank that only exempt funds are deposited in that account so any further attempt to seize the balance would be illegal.

I would also file a counter suit against the plaintiff.

Loveable1078,

There shouldn't be a problem with the account but I would definitely keep separate accounts to prevent future worries. As long as you're able to prove ownership of the funds, then you should be able to obtain court-approved documentation for the bank before April 10th.

In Scott's post, he suggests filing a motion to vacate the judgment for improper service and this is good advice. It will work the same, assuming you can prove the blatant address error. Just be careful. If this firm is as "shady" as you describe, then they're probably well-versed at the art of deception. Point being, it is undoubtedly easier for you to prove your funds are yours than it is to prove that this firm knowingly served a wrong address. Their lawyers probably already have a pre-determined, built-in defense for it. A judge or a magistrate can easily see title or ownership of money and assets. He might not see the address fiasco as clearly. Maybe and maybe not. If you have the proof and you feel confident, then you can do it either way. Good luck to you.

Quote:

Originally Posted by XTC832

In Scott's post, he suggests filing a motion to vacate the judgment for improper service and this is good advice. It will work the same, assuming you can prove the blatant address error. Just be careful. If this firm is as "shady" as you describe, then they're probably well-versed at the art of deception. Point being, it is undoubtedly easier for you to prove your funds are yours than it is to prove that this firm knowingly served a wrong address. Their lawyers probably already have a pre-determined, built-in defense for it. A judge or a magistrate can easily see title or ownership of money and assets. He might not see the address fiasco as clearly. Maybe and maybe not. If you have the proof and you feel confident, then you can do it either way. Good luck to you.

I have to disagree with this in this situation. According to the OP it appears she has a copy of a contract that shows the current and previous address. She also has evidence that service was made at the previous address. I'm not suggesting that she suggest that service was knowingly made incorrectly. Just that it WAS incorrect. There is also the fact that a default judgment was made. Judges want to make sure due process is provided. They will routinely vacate default judgments if there is any indication the defendant was not aware of the suit. And courts are well aware that firms do fudge service to get default judgments for example, the NY Attorney General has put a few such process servers out of business.

That's why I feel the OP has a better chance of getting the judgment vacated on improper service, then getting the levy lifted because of exempt funds.