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creid59 · Oct 6, 2010, 07:28 AM

When I when my judgement, can I take the portion of the person's bank account that is not attributed to their ssi benefit for garnishment?

JudyKayTee · Oct 6, 2010, 07:56 AM

Yes, if you can PROVE what portion is and is not SSI. This becomes very difficult. If it's direct deposit and comingled funds, who is to say which bills (for example) are paid out of which portion of the account - ?

AK lawyer · Oct 6, 2010, 07:58 AM

Originally Posted by creid59

When I when my judgement, can I take the portion of the person's bank account that is not attributed to their ssi benefit for garnishment?

You should become familiar with the rules governing garnishments in your state, but in general the judgment debtor will have to be able to prove if any portion of their bank account is exempt. Usually, if they have mingled exempt funds with non-exempt funds, no portion of the account would be exempt. But again, check your local rules.

Chinitah · Oct 8, 2010, 09:14 AM

Depends on how you going to do it and also you probably look at all the angles

JudyKayTee · Oct 10, 2010, 06:50 AM

Originally Posted by Chinitah

Depends on how you going to do it and also you probably look at all the angles

I don't understand your comment - what do you mean?

ScottGem · Oct 10, 2010, 07:36 AM

I hate to give advice that would take money from a person on SSI, but AK is right. The burden of proof here is on the debtor. If you can get a writ of execution on the account, then you can serve it for the balance of the account. Its then up to the debtor to prove what is SSI and what isn't.

If they have commingled funds, it may be impossible to prove.

ScottGem · Oct 10, 2010, 07:42 AM

Originally Posted by Chinitah

Depends on how you going to do it and also you probably look at all the angles

You are new here, so may I offer some advice on helping out here. We pride ourselves on the quality and accuracy of the advice we give out here. In addition, responses in the "technical" boards like law and medicine are held to a higher standard of adhering to legal or scientific accuracy.

Your response here has almost no meaning. There is only one way for a judgment holder to attach a back account and that's by getting a writ of execution from the court that issued the judgment to serve on the bank.

The advice to "look at all the angles" is meaningless since it can apply to ANY situation. Its nice that you want to help, but please make sure you adhere to the standards of this site when doing so.

creid59 · Oct 12, 2010, 05:58 AM

I am suing a renter for breach of contract and not completing the full term of his contract and he is on SSI. If he does not show for the mediation, of course, he will default and loose the case, but knowing that he has a bank account and assets, can I file an execution against property to pay for the remaining months of rent?

ScottGem · Oct 12, 2010, 07:13 AM

You certainly can file for a writ of execution if you have his account info. It will then be up to him to prove that the funds are totally from SSI.

Also while SSI is exempt for garnishment for unsecured debt, rent is not unsecured debt. It's possible, that in your area, it can be attached.

creid59 · Oct 20, 2010, 10:10 AM

Thanks ScottGem, your help has been very much accurate and appreciated. Another question. I have won my judgement, even though this person collects ssi, I know his social security number, birthday and bank account number if he hasn't cancelled the account. After 21 days has passed, having this info what can I do to try to recoup my money?

ScottGem · Oct 20, 2010, 04:09 PM

You go to the court that issued the judgment and apply for a writ of execution against their bank account. Then you have it served on the bank.

creid59 · Oct 30, 2010, 04:43 AM

After the 21 days has passed, which would be Nov. 3rd. I was going to apply for a writ of execution, but I received in the mail today a notice to appear for motion to set aside default judgement by the defendant. It was filed with no return address, no location of all bank accounts. He supplied nothing supporting the motion. We're ordered to meet Nov. 8th. Should I file an objection to the motion? And if I do, I have no forwarding address to sent it to. Should I address this with the court that approved the motion and ask why they approved an order to appear with incomplete documentations?

ScottGem · Oct 30, 2010, 05:47 AM

You received a default judgment. Generally that means the defendant didn't show for the hearing or respond to your summons. Courts will accept such a motion because they want to give the defendant their day in court. As the plaintiff you have to prove YOUR case. In a motion to dismiss, he doesn't have to include info on bank accounts. The only thing wrong with the filing would be if no address was listed on the motion. The notice you received doesn't need a return address. But the motion he filed with the court would and you should be able to get that from the court.

If the motion doesn't have that info, then I would file an objection. Otherwise wait for the hearing. I assume you have sufficient documentation to prove he owes you the money. You need a copy of the signed lease, and an itemized statement of what he owes. I would also bring proof of service as that is the most likely reason for to vacate a default judgment.

If he makes claims that you are not prepared for, you can ask for a continuance to assemble the proof. Cite the fact that no grounds were given for the motion to set aside. The only thing I can see is claims that you breached the lease by not providing a habitable rental. So you might have documentation of that as well.

If the judgment is not set aside, require that he complete an interrogatory on his income and assets.

creid59 · Nov 10, 2010, 07:14 AM

Amazing court system we have, his motion was set aside for reasons I don't know. This really upset me, then the magistrate asked if we wanted to have a hearing to resolve this today, we both agreed. He used his father as a witness, which makes no since, he was not there. The contract he signed, and admitted to signing was thrown out as well for "my wording". But he also agreed and signed the contract. We also signed a waiver for an attorney, jury trial. I had to appeal. My question is since I signed the waiver, can I bring in my witnesses to the appeal to prove my case?

ScottGem · Nov 10, 2010, 04:33 PM

This doesn't make any sense. If his motion to set aside was denied, then the default judgment remains in effect so what was the need for a hearing? So it would appear his motion was granted.

A witness has to be present to be used. He can list a witness, but if the witness is not present for the hearing his testimony can't be used. So the judge threw out the contract because of the wording. Doesn't matter that much that he signed it then. Your only grounds for appeal would be on the ruling that wording was illegal.

AK lawyer · Nov 10, 2010, 10:19 PM

Originally Posted by creid59

... my question is since I signed the waiver [of jury trial], can I bring in my witnesses to the appeal to prove my case?

Depends. Generally, appeals don't involve any new evidence, such as witnesses.

However small claims cases are a "different kettle of fish". Your local small claims rules may allow trials "de novo", in which case you may be able to present witnesses.

creid59 · Nov 13, 2010, 08:46 AM

OK, let me clarify myself. His motion to set aside the default judgement was granted, for what reason, I don't know. Then the magistrate asked us if we want to proceed with a hearing regarding him signing my rental contract. We both agreed. Then he asked if he could use his dad as a witness. The magistrate said OK. How could this be? His witness was not at my home when the incident happened, his testimony was only on hear say from his son. I presented evidence that he signed the contract, he was shown his signature and agreed that it was his signature. You would think at that point he would be held accountable and responsible, case closed, but after he and his father cried and lied to the court, that I threw him out, and that I told him he had 1 hour to get out, the magistrate believed them. I was told by the magistrate that renting is a tough business and that I should spend a little bit of money and have an attorney look at my contract. Regardless, both of us signed the agreement and both of us agreed verbally and written. I had no choice but to appeal.

Since I signed the waiver for a jury trial, attorney etc... since I was not prepared to have a hearing and present witnesses, can I still present my witnesses that were at my home when the incident happened?

AK lawyer · Nov 13, 2010, 10:41 AM

Originally Posted by creid59

...
Since I signed the waiver for a jury trial, attorney etc... since I was not prepared to have a hearing and present witnesses, ...

You specifically agreed to go ahead. In my opinion, this excuse won't work.

Originally Posted by creid59

... can I still present my witnesses that were at my home when the incident happened?

As I said, probably not, unless it's an appeal combined with a trial de novo. I don't understand the factual issue. The magistrate found that the defendant didn't sign the contract or that the contract was invalid? If it's the latter, whether he signed it is immaterial.

What kind of a case is this? Landlord-tenant? What is the specific contractual language that you are seeking to have enforced?

creid59 · Nov 13, 2010, 01:14 PM

It is a Landlord-tenant contract that he and I signed after I explained the terms to him. He acknowledged under oath that he signed the contract and that he had no problem with the language. And the magistrate dismissed his motion to set-aside the default judgement where he produced nothing to support his reasoning to have the judgement dropped, he just talked about our 1st mediation meeting and what happened at my house. The judgement that I won specifically stated that he must pay the judgement in full or disclose in writing source of income, location of all bank accts etc. He mentioned non of that. I'm not sure what contractual language in the contract the magistrate is talking about, he never told me. This is an appeal without a jury.

creid59 · Nov 13, 2010, 01:18 PM

Now I have to appeal the magistrates dismissal to a higher court and looks like it was dismissed with prejudice, don't know what that means. Will I have to explain to a higher court what happened from the day he moved in or just explain why I think the motion and contract should be reversed?