Lein on bank account because I owe to a collection agency...?

Question

I asked a similar question but the story has evolved...

I have LVNV creditors after me and I sent them a certified letter asking to prove that I owe that amount to them (it's actually frm SEARS). They have until July 24th to get back to me. However, I received a garnish notice from the courts. It says that they found LVNV in favor and I can dispute is by asking for a hearing.

http://www.fcmcclerk.com/forms/civil/OTW_Notice_to_Judgment_Debtor.pdf

that is the letter I received.

I called the number and the clerk of courts said that a judgment was placed on a bank account that I haven't used in months and has a balance of $0.00 - My sister said they could arrest me and when I asked the clerk of courts she said they couldn't unless they filed a writ of capias (warrant). What does that mean?

I have contacted lawyers from naca.net but haven't heard anything...

if anyone has gone through a similar situation, please help

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Answer 1

I wouldn't wait to hear back from NACA.

Your best bet is to find a local lawyer to help you navigate through all this mess.  You should also go to the court and get a copy of your case file.  If you were served with papers and ignored them, then you don't have much of a recourse.  I would suggest that you do not deposit any money into that account because anything that you do deposit will just be lost if the garnishment is upheld.

You won't go to jail.  If you fail to ask for a hearing or send back the form, the court will assume that you have no objections.  As there is no money there, I guess in the long run it doesn't matter, but it is possible that they could seize other things or even garnish your wages.

If you were never served with papers, then there's a possibility that the judgment was awarded improperly.  These types of judgments can be overturned, but you will probably need the help of a lawyer.  Collection agencies are reknowned for doing this kid of stuff.  Improper service is a denial of your rights.

As for the letter regarding proof that you owe the debt, I'm afraid that it is too late for this kind of letter.  They've already won a case against you, and have already proven that you do owe the debt by going to court.  They are not going to respond to this letter and nor do they have to.

As for a warrant...your case is civil.  As long as you don't do any of the things that they told you not to do in the letter, then you'll be fine.  I suggest that you send the paper back and try to get a hearing.  Putting a lien on a $0.00 bank account seems like a waste of everyone's time.

Good luck!

Answer 2

As the previous answers stated, you obviously did not get properly served with the court papers....or you did and just ignored them.  Either way you have a judgment on you, and they are now trying to collect.

You can fight the service of this, but from what I understand from your question you do owe this debt.  When you contest an "improper service" you must prove that:

1) You were not properly served and did not have the opportunity to appear in court and contest the complaint.

2) If the case were retried, you stand a good chance of winning and having all or part of the judgment overturned.

Since you owe this, and they can probably prove it (can they?) I wouldn't recommend you upset the judge by wasting his time with frivolous motions.  Not only will it cost you filing fees, you may end up paying the other parties court costs if you lose.

I work as a part time process server in Michigan and I've seen this many times.  I get called back to court to verify I actually served the summons, and the judge most often will side with the process server unless it's a very obvious mistake.

As for the Writ of Capias....this is a "warrent" issued by the judge to arrest you.  But these are extremely rare, and will only be issued if you are deliberately trying to hide you assets or run away from prosecution.  Debts are a civil matter, NOT a criminal matter.  So trust me, you will never be arrested for failing to pay a debt.  If that were the case they would need to build a whole lot more prisons.  Tell your sister to quit listening to collection agents.

And be happy that they went after a bank account that you didn't have any money in.  They just wasted money on a garnishment that got them nothing.  

If you have other bank accounts, get your money out or look into asset protection ideas.

Answer 3

Bank account freezes should never come out of the clear blue sky without your having been aware that someone had taken legal action against you. You should have received some sort of official notice of a pending court date called a 'summons.' These are usually delivered by sheriffs. It sounds like you have have been victim of a dirty tactic called a 'sewer service' summons delivery.  

A 'sewer service' delivery of a court summons means deliberately sending a summons to a wrong/old address to ensure that you won't be there to get it.....Because you will not be aware of the court date....you will be a 'no show' at court. By default the other side will win simply because you did not show up. If you never received an official summons, this is probably what happened to you and explains how they were able to freeze your checking account out of the clear blue sky.

If you believe that you were not properly served, then you can most likely get this judgment voided. I recommend the following steps:

Step #1: Contact your local Red Cross for a referral for free legal services in your area. You may qualify for some free legal assistance on this issue

Step #2: Send a certified letter with return receipt (very important) to LVNV with the simple note:

'Per the Fair Debt Collection Practices Act, I am requesting validation of the address that your office served my summons to.'

DO NOT sign your name on this letter...they might pull off your signature and use it on forged documents.

Step #3: Go to the courthouse and get copies that show what address your summons to appear in court was delivered to. If you can document that you were improperly served, you need to fill out a motion to vacate the judgment.

Answer 4

As I had mentioned in one of your questions earlier, LVNV is known to use deceptive practices.  This is a case where they won by default simply because you did not show up for the court hearing.

If you did recieve the original summons and failed to appear, then there is not much you can do.  HOWEVER LVNV is known to use old addresses to have papers served, thus you never realy recieved the original summons. (this is how they get their judgment by default).

Go to the courthouse and request to see the original copy of the summons that was served.

Look for mistakes and misinformation, especially on when and how you were notified. If you believe you were not given "due process" then you can file a motion for rehearing or motion to dismiss with the court.

If you can prove that you were not given due process, the judge must consider your circumstances. It's possible to have the case dismissed. Unless you are very comfortable with filing pro se (by yourself) I highly encourage you to discuss your case with an attorney well versed in credit and debt consumer law.

As to the writ of capias, that would only be legal if you paid a debt or judgment with a check from a known account that has been closed. (passing bad checks).

Once again, Hope this answers your question

LEGAL DISCLAIMER:  The advice contained herein is for informational purposes only.  It is not to be construed as Legal Counsel nor Legal Advice.

Answer 5

The lien on your account is in hopes that you will deposit cash one day and then the creditor will whisk the money away. If you don't use it - they won't get anything. They can't arrest you.

If they're actively pursuing judgement against you that means that the collection/barganing process is slim to none.

Your letter aka debt validation is pretty late in the game and you shouldn't have written it to LVNV you should have sent it to the credit bureau for validation. Ofcourse LVNV is going to say you owe it....why wouldn't they?

The next step if the debt is found valid by credit bureau is LVNV will continue to try and collect. If they are issued a judgement against you (thru the court where you'll be issued a summons to appear) they can garnish your wages up to 30%. Send that same letter via reg. mail to credit bureau ASAP.