Often someone’s first notice that they have been sued by a creditor comes when their employer informs them that their wages are being garnished because of a judgment. If this is the case, then the judgment was taken by default. In other words, a lawsuit was brought against you; a summons and complaint were allegedly served on you; you allegedly ignored the matter; and a judgment was entered against you based on your failure to appear or answer within the time permitted by law.
This is obviously not what happened, however. Instead, the more likely scenario is that a creditor resorted to unscrupulous debt-collection tactics, including having retained a debt-collection attorney who obtained a default judgment against you by way of improper service of papers. This improper service is sometimes referred to as “sewer service” or “gutter service,” because the process server hired by the debt-collection law firm will simply throw away the papers and falsely swear in an affidavit that you were properly served. This is a criminal act and it deprives you of your day in court since you will never know that you are being sued.
This problem has been the subject of many lawsuits and criminal prosecutions; and virtually all of the major debt-collection law firms have been implicated to one extent or another. Still, they continue to use process servers who intentionally fail to serve papers and falsely swear that they did. Debt-collection law firms will often claim that they are innocent of any wrongdoing because they cannot know what their process servers, who are independent contractors, are doing. This claim is dubious, however, since debt-collection attorneys know that they are being billed by, and paying, their process servers way too little to expect that they are honestly doing their jobs; and debt-collection attorneys also can see that the number of judgments they take by default so far exceeds the number of judgments awarded on the merits of the case that suspicion should be raised.
So what can you do when your wages are being garnished because of a default judgment you knew nothing about? It is important to act immediately, because acquiescing once you learn of a wage garnishment will make vacating the default judgment all the more difficult and, in some cases, impossible. The first thing you should do is consult with and retain an experienced and knowledgeable debt-collection defense attorney. Your attorney will immediately prepare and file an order to show cause. This is a type of motion seeking to vacate the default judgment and to allow you to have your day in court. Once the judge signs it and it is served on the creditor’s debt-collection law firm and the sheriff, they will be prohibited by law from continuing to enforce the default judgment until the judge decides your motion to vacate it. That means that no more of your wages will be seized during the pendency of the motion.
Since it is public policy that cases be decided on their merits, and since courts generally disfavor default judgments, if you can state to the court both a reasonable excuse for having defaulted and a meritorious defense to the claims of the plaintiff, the court will vacate the default judgment and permit you to have your day in court. Debt-collection law firms know this; and the smart ones will consent to the court vacating the default judgment and allowing you to answer the complaint. However, since many debt-collection lawyers also know that they do not stand much of a chance of winning a judgment on the merits, especially when the defendant is represented by an experienced debt-collection defense lawyer, they will oppose your efforts to vacate the default judgment in a desperate effort to hang on to it. They usually fail and their efforts waste everyone’s time, including that of the court.
Once the default judgment is vacated, the wage garnishment will officially end, and any moneys being held by the sheriff at that time can be returned to you. You will also have the right and the duty to defend yourself in the matter. It will be as though the hands of time were turned back to the moment you were alleged to have been served with the summons and complaint. You will have to serve and file an answer to the complaint; and there will likely be an exchange of documents and evidence; and more motions. You will not have to worry about any of this, or take any action, however, because these are all things your debt-collection defense attorney will handle for you. Once all of that is out of the way, the matter will proceed to trial. If the creditor cannot prove its case at trial, you will win. So if you should discover that your wages are being garnished because a default judgment has been entered against you, the first thing to do is retain an experienced debt-collection defense attorney to represent you.