Background: I have been paying on a credit card on which I was no longer using but owed around $4,000 on. The interest rate was high as is, but then got increased unexpectedly. The balance started to climb and my payments were barely making a dent. I called them asking for help with the interest rate and informed them that I could not afford the payments anymore.

They would not work with me so I had to stop making payments to them to pay for more important things (I realize that its my debt and I owe it) but realize that I needed to prioritize my income and this was what had to be cut. I was ignorant at the time and was blind to the repercussions that were sure to come in the future. I didn't hear from them and went about my life.

The next time I hear about anything from this credit card company was when they sent a copy of the request for default judgement. This was from an attorney on behalf of the cc company. I called and asked what was going on and they said they have a judgement against me and will start garnishing my wages. The amount was way more than the original debt, around $9,900. I asked them if I could do anything to fix it, they offered to set up a payment schedule. Knowing what I could afford at that time I offered to make payments at $50 per month and they declined.

After some research, I found that you could file a motion to set aside judgement. My basis was for not being served. Had I been served I could have made it to the hearing and defended my case. I do not believed I owed what was said and I would hope to come to a payment agreement that I could afford.

I went to the courthouse and saw the proof of summons. I found out that they were trying to serve me at my old address. They tried 3 times and then decided to leave it with the person that was there now. I know this is substituted service but also know that they were supposed to also mail the documents to the same address. At the time I had forwarded my mail to my new address. I never received them at my new address.

Current Situation: I am now having 25% of my take home pay taken out of my check via wage garnishment and it is killing me as I am struggling to make ends meet. We are a single income home raising 3 children. I cannot survive much longer, I am running out of things to sell...

I know I owe them money, I just don't believe the amount they're asking for is correct. I know I have a right to defend myself but was unable to because I was improperly served. Am I wrong? I know there must be a way to get my day in court, but also know this will take some time and they are still going to take 25% until that happens. How can I stop the garnishment, based on the improper service and appear before the judge to defend myself?

You can file a motion to have the judgment vacated based on the improper service. More details on how to do this would be available with your local court clerk. However, if you are successful, they will just serve you properly at the hearing. If you owe the debt, this is a stalling tactic. They will move for another judgment, and unless you have a better defense than "I can't afford it" they'll win and put you back in the same situation. Read through your cardholder agreement. It allows for additional fees, penalties, and interest if you go into default, or they have to take legal action against you. If you are successful in getting the judgment vacated, I would suggest that you try to settle with them in the interim.

You can and if you want, should, do this.

Result, you will lose one or two days pay, as you appear in court, they may get a case postponed and so on, ( very common)

Then they merely serve you at the correct address and get a new judgement.

So in a couple months they will be right back at the 25 percent again. Thus the reason why offering 50 dollars or so, does not work normally, you have to offer something greater, closer to that 15 percent of pay anyway, since they can easily get 25 percent

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Originally Posted by VibeMan

They would not work with me so I had to stop making payments to them to pay for more important things ... I didn't hear from them and went about my life.

...

Had I been served I could have made it to the hearing and defended my case. I do not believed I owed what was said and I would hope to come to a payment agreement that I could afford.

...

How can I stop the garnishment, based on the improper service and appear before the judge to defend myself?

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As Chuck said, you might be able to have the judgment vacated for improper service, but that would only delay matters.

You keep referring to defending yourself. But to do that you need to have a LEGAL defense and you have none. You stopped paying. With interest and legal fees, its very likely for the amount of the debt to double and triple. You owe the debt and have acknowledged that fact. The only question is the amount and they will, in all likelihood, be able to prove that.

So your best bet is to work out a settlement you both can live with.

I would like to work out a settlement with the cc company, but cannot afford the 25% they are currently taking from my check. I feel the likelihood of the cc company accepting what I could realistically afford is very slim since they already have a judgement against me. I mean why would they care? I probably do not have a strong legal defense but I was hoping that if I could appear before the judge on the original case, a suitable arrangement would be made, rather than give the maximum California allows in wage garnishment. Things are really bad and I am considering filing bankruptcy to stop the garnishment.

Bankruptcy laws have changed... don't assume all debts can simply be discharged with no payments required. Its not like it used to be. Some can be... but its not a clean sweep like it once was.

Bankruptcy my be your best option. Judges enforce the law. Small claims judges often try to work out a solution, but most judges just rule according to law.