Advice sought from INGO Legal Eagles

[wtburnette]

Was absolutely shocked to receive a garnishment order for the wife in the mail yesterday. This thing came completely out of the blue. I discussed it with the wife and here's what I found out:

Evidently when she got separated or divorced from her ex back in 2010, she couldn't make payments on her van and it was repo'd (stinkin JD Byrider). After it was repo'd, she heard nothing else from them until the garnishment order that was just received. She had lived at the address Byrider had on file for her for 2 years after the repo without a peep from them or a collections agency. 8 years later we get a garnishment order in the mail, with no contact at all before this. I have a bunch of questions and figure we'll need to speak with a lawyer, but thought I'd get some free legal advice prior to having to pay for it

• I guess the biggest question is, is this legit, or do we have any grounds to fight this?
• We weren't told of the hearing, so I'm not sure if we can object to the order, or if we have to fight it another way. I'd looked up some info that said the court should have sent out a form with options, but didn't receive anything like that. Should I contact the county clerk about that?
• The collections agency that filed stated they had my wife's current address for a while, but made no attempt at all to contact her. That sounds a bit fishy to me.
• What are my options? Is contacting a lawyer the best option and if so, does anyone have a recommendation of someone I could work with?
• If we do need to contact a lawyer, would it be best if the wife does this, or can I? We've only been married 3 years so this was quite a bit before that.

Anyway, like I said, thought I'd see what free info I could glean before having to empty out the old wallet over this mess. Thanks ahead of time.

 

[T.Lex]

She'll need a lawyer. There's no way to tell if there's a way to fight this or not.

At a certain point, you'll also need to assess whether it is cheaper to just pay the (potentially fake) debt. That would REALLY suck, but there's a cost-benefit analysis that needs to happen. If it costs you $7k to get out of a $5k debt, that would really suck, too.

PM me if you want anything more specific.

 

[hoosierdoc]

7 years on an old debt is fair right? When did the van get taken? Not sure when it becomes bad debt and the 7 years starts though

 

[HoughMade]

I will speak to these issues in generalities. I do not know all of the facts and, therefore, I cannot render specific legal advice in this situation. I would counsel that retaining a lawyer very, very soon is the best idea. He or she can then render specific advice. I am not forming an attorney-client relationship by stating anything in this post.

I guess the biggest question is, is this legit,

Maybe, I can't tell. There is a 10 year statute of limitations for written contracts, so just because there was no word in 2 years doesn't mean much.

or do we have any grounds to fight this?

There are likely arguments to be made even if the lawsuit itself was commenced in accordance with the law. Get a lawyer if the amount in dispute is something you don't want to just pay.

We weren't told of the hearing, so I'm not sure if we can object to the order, or if we have to fight it another way. I'd looked up some info that said the court should have sent out a form with options, but didn't receive anything like that. Should I contact the county clerk about that?

At a basic level, every lawsuit needs to have notice to the defendant through service of process and hearing should have some sort of notice. Not having received service of process is only the beginning of the inquiry, however, it's a good place to start. If it were me, I would check with the clerk to see how service of process was obtained...but I'm a lawyer. If I were you, I would retain a lawyer to track these things down. Service of process can be accomplished through many means including, but not limited to, personal service, certified mail, first class mail plus leaving a copy at the residence, publication, or through other means included in the original contract.

The collections agency that filed stated they had my wife's current address for a while, but made no attempt at all to contact her. That sounds a bit fishy to me.

It does to me too. There are many interesting provisions to the FDCPA (Fair Debt Collections Practices Act). Sounds like a job for a lawyer.

What are my options? Is contacting a lawyer the best option and if so, does anyone have a recommendation of someone I could work with?

Options would seem to be: do nothing and let this be on her credit record, let her wages be garnished, until it's paid off. Pay it all off. Fight it. I would suggest getting a lawyer. I will take a look to see if I know anyone in your area. [edit] As it turnes out, I do not know anyone who does this kind of work in your area. Sorry.

If we do need to contact a lawyer, would it be best if the wife does this, or can I? We've only been married 3 years so this was quite a bit before that.

It's your wife's preexisting debt. She should be the primary person talking to the lawyer simply because she is the one who made the transaction at issue, but there is nothing wrong with you helping her out and being there for her. One thing I absolutely hate is asking the person who was actually involved questions and getting questions from someone who was not there.

When there is truly no notice and the service of process is iffy, it is not at all unusual for a judgment to be set aside. This can be time sensitive. Have your wife talk to a lawyer soon. Even if the judgment is set aside, that doesn't mean the debt, assuming it is legitimate, goes away. All that means is that now you can fight about whether it is legitimate and about how much the judgment should be.

Good luck.

 

[wtburnette]

Thanks to everyone for posting. I'm first planning to contact the collections agency to see if they're willing to settle for less than what's owed, though I don't know if that will work since they've already obtained a garnishment. I think that way I'll know what is on the line and if it's worth paying a lawyer to try to fight it. Gotta just love this stuff...

 

[hoosierdoc]

Have you checked your credit reports lately? May want to see if anything else is out there

 

[wtburnette]

We checked her credit reports and nothing showed about this (or anything else).

 

[hoosierdoc]

Huh. I guess it’s up to the company to report the bad debt. Surprises me though

 

[spec4]

In the divorce decree is this debt mentioned? Wondering if the ex was ordered to pay the car debt and simply defaulted. If so (IANAL) is he in contempt of court? Just a thought.

 

[wtburnette]

In the divorce decree is this debt mentioned? Wondering if the ex was ordered to pay the car debt and simply defaulted. If so (IANAL) is he in contempt of court? Just a thought.

Not that I'm aware of, but thanks for the thought. I'll have to ask.

 

[Tactically Fat]

You MUST ask for a debt validation letter. Full stop.

Don't mention anything else.

Ask for a debt validation letter first.

If the letter you receive doesn't state that it's a debt validation letter (perhaps labeled as a "debt owed" letter - then it ain't valid).

Go from there.

Don't call them and admit anything. They WILL use that against you. Establish validity first and foremost.

THEN you can jump through the hoops of all the failed notifications and what not.

 

[wtburnette]

You MUST ask for a debt validation letter. Full stop.

Don't mention anything else.

Ask for a debt validation letter first.

If the letter you receive doesn't state that it's a debt validation letter (perhaps labeled as a "debt owed" letter - then it ain't valid).

Go from there.

Don't call them and admit anything. They WILL use that against you. Establish validity first and foremost.

THEN you can jump through the hoops of all the failed notifications and what not.

Who do I ask, the collections agency or the courts?

 

[long coat]

If she owed 10K and they sold the van for 6K do they only owe the 4K difference?
You need to find out what happened to the van after the repo.

 

[HoughMade]

If she owed 10K and they sold the van for 6K do they only owe the 4K difference?
You need to find out what happened to the van after the repo.

Likely + costs associated with the repossession, disposal and collection....all depending upon what the actual contract said.

 

[Tactically Fat]

Who do I ask, the collections agency or the courts?

Collection agency.

 

[CHCRandy]

You also may be able to look at the case info on Mycase.in.gov . Look under civil, family courts in the county she lived at that time. It should show you all the details as far as where certified mail was delivered and such.

 

[wtburnette]

Thanks

 

[Double T]

Was going to suggest the mycase info. I've been hit with a garnishment order where we weren't contacted over a large amount, and was able to go in, request a hearing, and set up payment arrangements. Garnishments suck.

 

[BugI02]

As far as the dormancy of the collection, one collection agency may have recently sold the rights to collect on the obligation to a different, more aggressive collection agency

 

[wtburnette]

You MUST ask for a debt validation letter. Full stop.

Don't mention anything else.

Ask for a debt validation letter first.

If the letter you receive doesn't state that it's a debt validation letter (perhaps labeled as a "debt owed" letter - then it ain't valid).

Go from there.

Don't call them and admit anything. They WILL use that against you. Establish validity first and foremost.

THEN you can jump through the hoops of all the failed notifications and what not.

So, this is spinning out of control. Got them on the phone and said that I wanted them to send me the debt validation letter. They said sure. What I get in the mail today was only a copy of the default judgement from the court. That makes me even more upset as it says "...having been duly served fails to appear and on the Motion of the Plaintiff is now defaulted." Neither my wife nor I have heard anything from this company or the court, period. I'm not sure how they can go to court and show that we've never responded when we didn't even know about the debt until around 30 days ago...