Wage garnishment is a result of legal involuntarily collection used by many creditors in New York. If your wages are being garnished, it can be a shock to most people. In New York creditors with a valid judgment can, via a Marshall take up to 10% of your gross income right out of your paycheck. More often than not, people don’t realize how this can happen.
In New York, for a creditor to involuntarily collect on a debt, there has to be a valid civil court judgment. For a creditor to obtain a judgment they must file a suit against the Defendant, usually this suit is filed where the Defendant resides. Once the suit is filed then the Plaintiff (party suing the Defendant) must serve the Defendant with a Summons & Complaint within 120 days of filing the case. Once properly served the Defendant has 20 days or 30 days to respond. If they fail to respond, then the Plaintiff requests the court to grant a default judgment pursuant to the New York Civil Procedure Law.
How Can I be Served?
There are several different ways that you can be served with a lawsuit. The first is personal service, this is when the process server confirms your identity as the Defendant and actually hands the papers to you. Personal service is not all that common. The next type of service is called substituted service, where the process server serves another person at your residence or they attempt personal service and then leave the papers at your door in addition to mailing a copy. The process server will then file an Affidavit of Service with the court, in this document the process server attests to the fact that they gave you the papers. The difference between these two types of service is the time in which you have to respond. If you’re served personally then you have 20 days to respond, if your served by any other means, you have 30 days.
If you received a garnishment notice, then the 20 or 30 days have elapsed. Now the creditor has a judgment and has the legal right to collect involuntarily, which can mean wage garnishment. Even if you receive this notice you may have some options. It’s possible that you weren’t served properly. You can’t respond to something you never received, right? You will need to file something with the court called an Order to Show Cause (OTSC).
What is an Order to Show Cause?
In this OTSC you will need to explain why you think the court should vacate or remove the judgment against you. These reasons are:
- Invalid Personal Jurisdiction (bad service)
- You must be given the papers correctly. Some examples of bad service are:
- No one tried to serve you personally;
- You were served by the person suing you;
- The papers were served to someone who was not likely to give them to you.
- If you claim bad service, the court will set what is called a “traverse hearing” where you will have to prove the bad service.
- Excusable Default
- That you had a good reason to not respond, such as you were out of town when the papers were delivered, family illness, you couldn’t take off work, etc.
Once your OTSC has been filed with the court, the judge will have to sign off on it and set a hearing date. At this hearing, you will have to explain to the judge or court attorney why you believe the default judgment should be set aside. The decision is up to the individual judge, most judges in New York are debtor friendly and usually grant the OTSC to vacate the default judgment.
If you are not familiar with the legal process, drafting and filing these papers can be a bit overwhelming. It is always best to consult with an attorney that has experience defending these types of cases. The bottom line is, if you are getting garnished, you don’t need to give up. You still may have options to remove the judgment, and set up voluntary payments which can make things easier on you and your family.
The above post was written by Joshua C. Sibenik, Esq.