Need Help! Is this Legal

[Anonymous]

First I want to thank everyone that has responded to my post.  You all have been very helpful.

I have found out more information and am hoping that everyone can provide me with some insight.  Here is what I have found out.

Apparently it is a judgement that was filed on November 23, 2005.  The judgement DOES NOT appear on my report nor has it in the past two years since I have been monitoring my report very closely.  If not I would have taken care of this way back when.

So because of this judgement they put a hold on my account which they are calling a garnishment. 

One other thing the judgement was for a Providian Visa (sold to Unifun) that also DOES NOT appear on my credit report which according to the attorney's office that did the judgement was opened in 1997 and went delinquent on the 1/3/2001.   Does the 7 year rule apply to this even though the judgement was placed on 11/23/05. 

The fact that the judgement does not appear on my report and the fact that I was never notified of the judgement is it still a valid judgement? 

I spoke to the attorney in person and he stated that he can take care of the judgement if I agree to a payment plan.  Is this legal?  He also asked that if I can prove that I didn't live at the address where the judgement was sent that he needed that information. 

I am just sick over the whole situation. Whatever advice and help anyone can provide would be much appreciated.

[Anonymous]

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@Anonymous wrote:

First I want to thank everyone that has responded to my post. You all have been very helpful.

I have found out more information and am hoping that everyone can provide me with some insight. Here is what I have found out.

Apparently it is a judgement that was filed on November 23, 2005. The judgement DOES NOT appear on my report nor has it in the past two years since I have been monitoring my report very closely. If not I would have taken care of this way back when.

So because of this judgement they put a hold on my account which they are calling a garnishment.

One other thing the judgement was for a Providian Visa (sold to Unifun) that also DOES NOT appear on my credit report which according to the attorney's office that did the judgement was opened in 1997 and went delinquent on the 1/3/2001. Does the 7 year rule apply to this even though the judgement was placed on 11/23/05.

The fact that the judgement does not appear on my report and the fact that I was never notified of the judgement is it still a valid judgement?

I spoke to the attorney in person and he stated that he can take care of the judgement if I agree to a payment plan. Is this legal? He also asked that if I can prove that I didn't live at the address where the judgement was sent that he needed that information.

I am just sick over the whole situation. Whatever advice and help anyone can provide would be much appreciated.

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It depends. What's your state's SoL on open-ended accounts?

It sounds, though, as if it is a legal judgment/garnishment (never heard of a bank account seizure as being called a "garnishment" though).

It sounds as though this is what happened:
You defaulted on a CC in '01. They sued within the statute of limitations (or did they? We'd need to know what your state is!). Then, they went ahead and began the procedure to levy your account before the judgment's SoL was up.

There's two SoLs at play, here. First is the SoL as applies to suing for debt. The second is the SoL as applies to SECURING the judgment. Once the judgment's SoL expires, they aren't allowed to initiate action, such as garnishing wages or levying accounts.

Open-ended SoLs are usually between 4-6 years. Judgment SoLs are usually roughly 10 years. If your state's SoL on judgments is 10 years (which is the average, if I recall), they would have had until 2015 to actually begin garnishing or levying.

As to your CRs, judgments don't always seem to make it on to CRs (usually, yes. Always? probably not). And your original account with the CCC wouldn't have shown up on your CRs because it's too old.

Take the payment plan (unless you prefer to file a motion to vacate on the basis of improper service -- that is, protesting with the court that the plaintiff failed to notify you of the suit with due diligence). ESPECIALLY if they'll release your account -- preferably without actually taking any funds from the account!!

[Anonymous]

It is ILLEGAL for the bank to send an account in overdraft for a garnishment - PERIOD.

[Anonymous]

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@Anonymous wrote:

It is ILLEGAL for the bank to send an account in overdraft for a garnishment - PERIOD.

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I'd love to see a cite on that .... I'm not saying you're wrong, BTW. It's just that when CSE made that mistake, it caused several overdrafts on our account (which were later "forgiven" -- but it was a helluva pain in the butt to deal with). If we'd have known THAT, it would've been so much easier to get them to "forgive" the OD fees.

My thinking was along the lines of X's account is garnished for $4000, and HAS $4000 in the account. Then, $4000 worth of checks and debits come through, which, at $35 a pop, sends it into the red.

If they can't send it in to overdraft, what do they do? If they reject the draft, they still charge the $35 fee (plus the $75 fee for administration of a levy) per rejected draft. After a while, that adds up, I'd figure.

Or do they just reject the debits (NOT the garnishment) and not assign any OD fees out of the kindness of their hearts?

Again, NOT saying you're wrong -- just can't seem to get how it would work.

[Anonymous]

it depends on what comes through first - FIFO (First In, First Out) - the bank can't decide on its own volition who to pay first.

if there are funds into the account, the bank can pay UP TO the limit of what's IN the account. Not a penny more. Call them, discuss and if you don't get anywhere, sue the bank for the fees immediately - same day in small court. That will get their attention.

[Anonymous]

Again, NOT arguing with you .... I just still don't get it (I'm tired and can't even wrap my poor tired brain around DD's Pre-Algebra)!

Soooo ... please talk to me (I'm honestly asking) like I'm a moron. Can we use this scenario?

I have $4K in my account. Unky Sam (for lack of a better antagonist) comes along and takes $3950 out for a tax lien. So, now I only have $50 to my name.

BUT, I didn't think that would happen, so I've written checks for my rent (we'll say $1400 -- which is actually pretty **bleep** close to the truth), electric for $300 (again, ouch!), groceries for $300, and car payment $200. That's a total of $2200. But all I have in my account NOW is $50.

How would that work? Even if my bank does just reject the checks, they still charge me for them, don't they? According to my bank's rates schedule, that would be AT LEAST $210 (including the $75 fee for levying).

Or do they have to forgive them? Or can they come after me for the $$ AFTER I make another deposit? Or do they just close my account and tell on me to Chexxsystems?

Again, I'm really honestly asking. I just don't get it. Just one of MANY things that I don't get about the banking industry. o_O

I think part of reason I don't understand is the fact that my bank would literally (I'm sure) run over a puppy to get my last dime in the way of fees if they could. Heck, if they had to drive over two puppies, it'd probably count as a vacation for'em. So I can't see them forgiving a **bleep** thing. They suck.

[Anonymous]

Whatever item that gets presented first will get paid first.  So,

if the 3950 was sent to your account prior to the other bills they would pay the 3950 and then either overdraw your account to pay the other bills are send them back NSF (or a combination as they might decide to pay the first item or two and not pay further items.

If the mistake was the banks they would refund any charges

If there was a mistake on the end of the party for the garnishment they would be liable for any fees, late charges, etc you recieved (although the bank may just go ahead and refund with proof of the mistake)

If the garnishment was accurate then the bank has no legal reason to remove any late fees or pay any items.  The may do so for customer service reasons, but if it is alot of fees and the garnishment was legit then they are unlikely to release the charges. 

[Anonymous]

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@Anonymous wrote:
Again, NOT arguing with you .... I just still don't get it (I'm tired and can't even wrap my poor tired brain around DD's Pre-Algebra)!

Soooo ... please talk to me (I'm honestly asking) like I'm a moron. Can we use this scenario?

I have $4K in my account. Unky Sam (for lack of a better antagonist) comes along and takes $3950 out for a tax lien. So, now I only have $50 to my name.

BUT, I didn't think that would happen, so I've written checks for my rent (we'll say $1400 -- which is actually pretty **bleep** close to the truth), electric for $300 (again, ouch!), groceries for $300, and car payment $200. That's a total of $2200. But all I have in my account NOW is $50.

How would that work? Even if my bank does just reject the checks, they still charge me for them, don't they? According to my bank's rates schedule, that would be AT LEAST $210 (including the $75 fee for levying).

Or do they have to forgive them? Or can they come after me for the $$ AFTER I make another deposit? Or do they just close my account and tell on me to Chexxsystems?

Again, I'm really honestly asking. I just don't get it. Just one of MANY things that I don't get about the banking industry. o_O

I think part of reason I don't understand is the fact that my bank would literally (I'm sure) run over a puppy to get my last dime in the way of fees if they could. Heck, if they had to drive over two puppies, it'd probably count as a vacation for'em. So I can't see them forgiving a **bleep** thing. They suck.

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It depends on the bank.  Let's take your example:

"BUT, I didn't think that would happen, so I've written checks for my rent (we'll say $1400 -- which is actually pretty **bleep** close to the truth), electric for $300 (again, ouch!), groceries for $300, and car payment $200. That's a total of $2200. But all I have in my account NOW is $50."

My bank would pay all of those charges along with charging a NSF for each check/charge/debt/etc, especially the bigger charges as they think those are for mortage/rent or car or utilities which are important for you to live and work and make money to repay the NSFs.

Some banks aren't as nice as mine and would refuse to pay all of your charges in your example and still charge you a NSF fee because you didn't have the funds to pay.  In turn that would cause additional fees placed on your account from your mortage/rent, car or utilities.

And again it depends on your bank if they will come after you for the money if and when you make a deposit.  Some do, some don't.  Some banks keep your fees on file even if you stop banking with them because they think one day you'll come back to them and then they'll pop you for the fees.

[Anonymous]

To answer all your questions.  Yes the bank paid all the oustanding checks I had along with an NSF of $35 each bringing it to a total of $105 in fees!  Needless to say that I am furious over this and looks like I'm going to sue!   I spoke to the attorney again in the afternoon yesterday to find out if he received from Unifund the original credit card application with signatures.  He told me he had not "to hang tight that this will all go away"  That comment didn't settle very well with me so I did some research on the internet on Unifund and apparently they have a history of placing judgements on people without them being aware of it until sometimes years later which is my case due to it not appearing on my credit report and I come to find out after they have my money.  It seems to be that when they "Unifund" are asked to validate the debt they can't provide original documents.  Thus I believe his comment about it "going away".  I believe the attorney after meeting him in person realized that they caught a live one that is not going to sit back and take it.  I also believe that due diligence was not provided and also may be a reason for his making the "go away" remark.  Any ideas?  Should I sue?  Is the aggravation worth the outcome?   

[Anonymous]

First of all to Wonderin: I wasn't aguing with you, sorry if it came across that way.

Second, for Determined: go to www.naca.net and find an attorney there - get an initial consultation and determine what's going on.

My gut says that the summons might not have been served properly, which would invalidate the judgement; the o\d should be illegal and you should be able to go after the bank if they pay out of an overdraft (now, if you have account protection from another linked account it would be little different, but I would expect the bank to ask you if $8k ACH is legit before paying).

Forget the debt validation stuff until you sorted out the more urgent stuff.

And finally, yes, most likely you will have to start suing to get out of this.