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jainth · May 15, 2007, 07:30 AM

My husband has a 10 year old debt that we just found out has allowed a lawyer to freeze our joint checking account. We were told by a different lawyer that this was not possible, since I was also on this checking account, and this happened before us (bad advice, but that's another story:mad: ). Anyhow, now our funds are frozen and we weren't able to cancel an incoming wire into that account on time. Now the account is only a few hundred under the amount they froze I for.
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QUESTIONS: Will they wait until the money is all there to take it? Is there anything we can do to lift the restraint? The bank says they got the order one week ago. How long does it take for them to take the money out? Do they just keep taking until they get the full amount? Or do they wait until it's all there?
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Our lawyer submitted an offer to settle on the case and we were under the impression that that was going to happen... until we found out about the restraint. Also, we had no idea it was even possible because we never got anything in the mail. Just yesterday we found out that the opposing lawyer had notice sent to my husband's mother's address... he hasn't lived there for years and I know the lawyer has our correct address, because we had previously been sending him monthly checks for this matter.
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Thanks in advance guys!;)

Lowtax4eva · May 15, 2007, 08:04 AM

Well if his mother received the notice they were going to freeze your account she may have also received the summons. They can't freeze your account without suing you so there had to be a trial which I guess your husband didn't go to as he didn't receive the summons in time.

If you have a lawyer they should be able to contest the ruling based on the fact they sent the docs to the wrong address, has he/she not suggested something to do?

And yes, they can keep taking money till they have it all, I don't know if there is a maximum per month or week, this might be in the judgement against you, which you also should receive a copy of, I think.

ScottGem · May 15, 2007, 08:08 AM

Your lawyer seems to be giving bum advice. The only way they can attach your account is if they obtain a judgement against you. Now if they obtained a default judgement by serving notice at your mother-in-laws address, then you should be able to vacate the judgement.

You need to get a copy of the court order from the bank and have your atty file a motion to vacate. If you can show they sent notification to a different address while they knew the correct one, then it will most probably be vacated, releasing your funds.

Note: they it being a joint account would NOT preclude it being attached. As long as your husband is a joint owner of an asset then its attachable.

Fr_Chuck · May 15, 2007, 08:08 AM

The bank account can stay frozen for months hopeingyou will put more moneyin the account or into it is fully paid. And of course they are just hopeing more money from a direct deposit, or transfer will come in.

And often they will lead you on trying to find out more about your money and then use all the info they gained against you to track down and take every penny.

So the collection people are crooks, who here is surprised raise their hand?

To freeze your account they had to have a judgement, without taking you to court they can not do this,

Also if the debt is 10 years old, unless you have been paying on it, there was a SOL in which they could no longer collect unless you attempted to make payments to them.

So you need to have your attorney file in the court where the attachment is, to release the money belonging to the other party.
If there are two names on the account, any money the one can prove is there money alone, from their work or income, that money could be released. But you are going to have to prove whose money is whose in the account.

Also if they did not give you proper legal service to get a judgement, that is also grounds to overturn the judgemetn.Your attorney needs to take it from here.

mr.yet · May 15, 2007, 08:20 AM

Most states allow for a third party claim against the account. File Motion to Quash the garnishment against the account.
Have husband file Motion to vacate due to improper service, with the court that granted the garnishment.

This will prevent the bank from releasing the funds until after the hearing on the motions.

jainth · May 15, 2007, 09:33 AM

Originally Posted by Fr_Chuck

To freeze your account they had to have a judgement, without taking you to court they can not do this.

also if the debt is 10 years old, unless you have been paying on it, there was a SOL in which they could no longer collect unless you attempted to make payments to them.

so you need to have your attorney file in the court where the attachment is, to release the money belonging to the other party.

Also if they did not give you proper legal service to get a judgement, that is also grounds to overturn the judgement.Your attorney needs to take it from here.

They seem to have gotten a default judgement when he didn't show to court.

The debt will actually be 10 years old next month... when they tried to garnish his checks from an old employer last year, we begin making $100 monthly payments, but weren't able to do it the last 3 months or so. So, it seems this will negate the 10 year rule, unfortunately. But it was either that or garnishment from what we knew.

Also, the funds are all in his name (direct deposit from payroll)... so no dice there.

We will file today for exemptions as he is head of household with dependents. I don't know how this all works, but we plan to also file a motion to vacate, the court told us the address they sent the paperwork to... and the clerk says that alone may be reason enough to vacate.

Lastly, she says the paperwork says that any monies in our account will be forwarded to the courts tomorrow or the next day, but if we file these other motions, the money may be tied up in court rather being sent to the lawyer while we proceed with hearings, I guess.

Thanks for all the info everyone!

QUESTIONS: DO WE NEED AN ATTORNEY TO FILE A MOTION TO VACATE? IF THEY DON'T RECEIVE THE FULL AMOUNT (WHICH THEY WON'T), WILL THE ACCOUNT STILL BE UNDER RESTRAINT, OR DO THEY HAVE TO REFILE? I just looked up the case online, and it says the garnishment was issued 29 days ago, and it says "Return Days = 30." I suppose this is where the clerk was saying that tomorrow, the funds would be released. DOES THIS ALSO MEAN THAT OUR ACCOUNT WILL BE RELEASED? (not that we'll be using it anymore) and geesh! I just read that the interest due on the case is nearly the same as the original balance, not to mention legals fees attached! :eek:

ScottGem · May 15, 2007, 10:07 AM

Once he started paying the SOL restarted. Without knowing more, I don't know whether they were bluffing in claiming they could garnish his account or not, but as soon as he made a payment, that opened that door. Its not a 10 year rule, the length on an SOL on a debt is generally 4-6 years.

You don't need an attorney to file a motion to vacate, but it would certainly help your case to do so.

The restraint on the account will remain in effect until the debt is satisfied or it expires IF an expiration date was set. That should be in the court order. The 30 days is the amount of time before seized money is forwarded to the creditor. So you need to get in your motions today.

jainth · May 15, 2007, 07:52 PM

Originally Posted by ScottGem

Once he started paying the SOL restarted. Without knowing more, I don't know whether they were bluffing in claiming they could garnish his account or not, but as soon as he made a payment, that opened that door. Its not a 10 year rule, the length on an SOL on a debt is generally 4-6 years.

You don't need an attorney to file a motion to vacate, but it would certainly help your case to do so.

The restraint on the account will remain in effect until the debt is satisfied or it expires IF an expiration date was set. That should be in the court order. The 30 days is the amount of time before seized money is forwarded to the creditor. So you need to get in your motions today.

Thanks for your advice. And no, they weren't bluffing about the garnishment, the employer notified my husband... it was definitely official:o . We filed the exemptions form that the clerk faxed us today. Just in case someone else is searching the forum and going through the same thing... I will post our results as they occur.

Thanks again to all!