Garnishment of Property other than Personal Wages

[pilot2969]

Last year Chrysler Financial LLC won two judgements against us due to voluntarily returned lease vehicles. We have a large amount of medical and personal debt and intend to file a Chapter 7 bankruptcy this summer when my business picks up.

Today I received a Garnishment of Property other than Personal Earnings affidavit in the mail. They have located our bank account and are planning on garnishing anything over $400.00. The problem is that I am self-employed, so any money being deposited into this account is considered personal earnings. In other words, they are garnishing my wages at an insane percentage beyond what is permitted by state law. This will make saving up for my bankruptcy filing difficult, let alone paying my monthly expenses.

Right now this is the only asset I have other than my car which is paid for but worth under $2000.00. I need advice on how to proceed. Can I object to this garnishment and request a hearing to explain that the money in this account is 100% personal earnings? Please advise.

 

[mightymoose]

Did you not appear in court when this garnishment was approved?
If not, it sounds like you need to get yourself in there and get that order modified.... or make your money disappear before they can get it.

 

[army judge]

Last year Chrysler Financial LLC won two judgements against us due to voluntarily returned lease vehicles. We have a large amount of medical and personal debt and intend to file a Chapter 7 bankruptcy this summer when my business picks up.

Today I received a Garnishment of Property other than Personal Earnings affidavit in the mail. They have located our bank account and are planning on garnishing anything over $400.00. The problem is that I am self-employed, so any money being deposited into this account is considered personal earnings. In other words, they are garnishing my wages at an insane percentage beyond what is permitted by state law. This will make saving up for my bankruptcy filing difficult, let alone paying my monthly expenses.

Right now this is the only asset I have other than my car which is paid for but worth under $2000.00. I need advice on how to proceed. Can I object to this garnishment and request a hearing to explain that the money in this account is 100% personal earnings? Please advise.

It isn't a garnishment.

It appears to be some type of trick to get you to allow them to take your money.

When they discover your bank account information, they don't warn you that they're coming to take your money.

They just take it, or have the bank take it for them.

Then they or the bank will tell you that they took "$XXX" from your account.


So, if it were ME, I'd take everything but a $1.00 (or reduce it some other nominal amount); and open an account a TRUSTED PERSON (spouse, mother, brother, confidante, mistress) open an account and keep the funds for me.

Or, just start using cash and money orders.

They gave you a warning.

They tipped their hand to you.

If it were me, I'd already have my money under my mattress or buried in backyard!

 

[pilot2969]

Mighty Moose - The only court date that was set was for the initial Judgement, there was no notification prior to this of their intent to garnish. According to the paperwork I can respond to the garnishment and contest it. I'm just not sure if that is the right way to go about my business, or even if it matters.

Army - According to the actual wording on the court documents, it is a "garnishment", but it is for "property other than personal earnings." I assume this means safety deposit boxes, or any other assets held by the bank. Again, I'm not 100% sure what that terminology means. Everything being deposited into my bank account is personal earnings. I don't think this is a full on bank levy, it's a one time deal that says if I have anything of value over $400.00 (which I don't) held at the bank than Chrysler can take it. I'm already on a cash/money order system thankfully.

From what I have read up on, under Ohio Revised Code, they are required to notify me of any intent to garnish property and allow me time to respond.

 

[army judge]

Mighty Moose - The only court date that was set was for the initial Judgement, there was no notification prior to this of their intent to garnish. According to the paperwork I can respond to the garnishment and contest it. I'm just not sure if that is the right way to go about my business, or even if it matters.

Army - According to the actual wording on the court documents, it is a "garnishment", but it is for "property other than personal earnings." I assume this means safety deposit boxes, or any other assets held by the bank. Again, I'm not 100% sure what that terminology means. Everything being deposited into my bank account is personal earnings. I don't think this is a full on bank levy, it's a one time deal that says if I have anything of value over $400.00 (which I don't) held at the bank than Chrysler can take it. I'm already on a cash/money order system thankfully.

From what I have read up on, under Ohio Revised Code, they are required to notify me of any intent to garnish property and allow me time to respond.

OP, you're correct.

My research reveals that you are expected to answer, not at trial, but before the clerk of the court wher the order was filed.

Here is the law, and the link to it, in case you don't have it.

It also contains a sample complaint and your expected answer.

Looks like you've got some "splainin' to do, Lucy"!!!

You also have a specific number of days to respond.

Bottom line, you can yet defeat this demand for your treasure!

My response has to be in TWO parts.

This is Part one, part two to follow.

2716.13 Hearing on motion for garnishment of property, other than personal earnings of judgment debtor.


(A) Upon the filing of a proceeding in garnishment of property, other than personal earnings, under section 2716.11 of the Revised Code, the court shall cause the matter to be set for hearing within twelve days after that filing.

(B) Upon the scheduling of a hearing relative to a proceeding in garnishment of property, other than personal earnings, under division (A) of this section, the clerk of the court immediately shall issue to the garnishee three copies of the order of garnishment of property, other than personal earnings, and of a written notice that the garnishee answer as provided in section 2716.21 of the Revised Code and the garnishee's fee required by section 2716.12 of the Revised Code. The copies of the order and of the notice shall be served upon the garnishee in the same manner as a summons is served and the clerk shall also mail a copy of the order and notice of garnishment to the garnishee by ordinary or regular mail service. The copies of the order and of the notice shall not be served later than seven days prior to the date on which the hearing is scheduled. The order shall bind the property in excess of four hundred dollars, other than personal earnings, of the judgment debtor in the possession of the garnishee at the time of service. Any garnishee that garnishes the property, other than personal earnings, of a judgment debtor in good faith reliance upon the order and notice of garnishment received by ordinary or regular mail service shall not be liable for damages in any civil action.

The order of garnishment of property, other than personal earnings, and notice to answer shall be in substantially the following form:

"ORDER AND NOTICE OF GARNISHMENT OF PROPERTY OTHER THAN PERSONAL EARNINGS AND ANSWER OF GARNISHEE

Docket No. ...................

Case No. .....................

In the ….............. Court

........................, Ohio

The State of Ohio

County of …........., ss

..................., Judgment Creditor vs .

..................., Judgment Debtor

SECTION A. COURT ORDER AND NOTICE OF GARNISHMENT

To: ...................., Garnishee

The judgment creditor in the above case has filed an affidavit, satisfactory to the undersigned, in this Court stating that you may have money, property, or credits, other than personal earnings, in your hands or under your control that belong to the judgment debtor.

You are therefore ordered to complete the "ANSWER OF GARNISHEE" in section (B) of this form. Return one completed and signed copy of this form to the clerk of this court together with the amount determined in accordance with the "ANSWER OF GARNISHEE" by the following date on which a hearing is tentatively scheduled relative to this order of garnishment: ............ Deliver one completed and signed copy of this form to the judgment debtor prior to that date. Keep the other completed and signed copy of this form for your files.

The total probable amount now due on this judgment is $.......... The total probable amount now due includes the unpaid portion of the judgment in favor of the judgment creditor, which is $..........; interest on that judgment and, if applicable, prejudgment interest relative to that judgment at the rate of …..% per annum payable until that judgment is satisfied in full; and court costs in the amount of $...........

You also are ordered to hold safely anything of value that belongs to the judgment debtor and that has to be paid to the court, as determined under the "ANSWER OF GARNISHEE" in section (B) of this form, but that is of such a nature that it cannot be so delivered, until further order of the court.

Witness my hand and the seal of this court this …....... day of …......., ..........

.........................

Judge


Effective Date: 06-26-2003; 2008 SB281 09-30-2008

http://codes.ohio.gov/orc/2716.13

 

[army judge]

Part Two - Continued Below

SECTION B. ANSWER OF GARNISHEE

Now comes …................. the garnishee, who says:

1. That the garnishee has more than $400 in money, property, or credits, other than personal earnings, of the judgment debtor under the garnishee's control and in the garnishee's possession.

............... ............... ...................yes no if yes, amount over $400

2. That property is described as:

3. If the answer to line 1 is "yes" and the amount is less than the probable amount now due on the judgment, as indicated in section (A) of this form, sign and return this form and pay the amount of line 1 to the clerk of this court.

4. If the answer to line 1 is "yes" and the amount is greater than that probable amount now due on the judgment, as indicated in section (A) of this form, sign and return this form and pay that probable amount now due to the clerk of this court.

5. If the answer to line 1 is "yes" but the money, property, or credits are of such a nature that they cannot be delivered to the clerk of the court, indicate that by placing an "X" in this space: ...... Do not dispose of that money, property, or credits or give them to anyone else until further order of the court.

6. If the answer to line 1 is "no," sign and return this form to the clerk of this court.

I certify that the statements above are true.

..............................

(Print Name of Garnishee)

..............................

(Print Name and Title of Person Who Completed Form)

Signed….....................................................

(Signature of Person Completing Form)

Dated this …....... day of …......., ....."

Section A of the form described in this division shall be completed before service. Section B of the form shall be completed by the garnishee, and the garnishee shall file one completed and signed copy of the form with the clerk of the court as the garnishee's answer. The garnishee may keep one completed and signed copy of the form and shall deliver the other completed and signed copy of the form to the judgment debtor.

If several affidavits seeking orders of garnishment of property, other than personal earnings, are filed against the same judgment debtor in accordance with section 2716.11 of the Revised Code, the court involved shall issue the requested orders in the same order in which the clerk received the associated affidavits.

(C)(1) At the time of the filing of a proceeding in garnishment of property, other than personal earnings, under section 2716.11 of the Revised Code, the judgment creditor also shall file with the clerk of the court a praecipe instructing the clerk to issue to the judgment debtor a notice to the judgment debtor form and a request for hearing form. Upon receipt of the praecipe and the scheduling of a hearing relative to an action in garnishment of property, other than personal earnings, under division (A) of this section, the clerk of the court immediately shall serve upon the judgment debtor, in accordance with division (D) of this section, two copies of the notice to the judgment debtor form and of the request for hearing form. The copies of the notice to the judgment debtor form and of the request for hearing form shall not be served later than seven days prior to the date on which the hearing is scheduled.

(a) The notice to the judgment debtor that must be served upon the judgment debtor shall be in substantially the following form:

"(Name and Address of the Court)

(Case Caption) ......................... Case No. .............

NOTICE TO THE JUDGMENT DEBTOR

You are hereby notified that this court has issued an order in the above case in favor of (name and address of judgment creditor), the judgment creditor in this proceeding, directing that some of your money in excess of four hundred dollars, property, or credits, other than personal earnings, that now may be in the possession of (name and address of garnishee), the garnishee in this proceeding, be used to satisfy your debt to the judgment creditor. This order was issued on the basis of the judgment creditor's judgment against you that was obtained in (name of court) in (case number) on (date). Upon your receipt of this notice, you are prohibited from removing or attempting to remove the money, property, or credits until expressly permitted by the court. Any violation of this prohibition subjects you to punishment for contempt of court.

The law of Ohio and the United States provides that certain benefit payments cannot be taken from you to pay a debt. Typical among the benefits that cannot be attached or executed upon by a creditor are the following:

(1) Workers' compensation benefits;

(2) Unemployment compensation payments;

(3) Cash assistance payments under the Ohio works first program;

(4) Benefits and services under the prevention, retention, and contingency program;

(5) Disability financial assistance administered by the Ohio department of job and family services;

(6) Social security benefits;

(7) Supplemental security income (S.S.I.);

(8) Veteran's benefits;

(9) Black lung benefits;

(10) Certain pensions.

There may be other benefits not included in the above list that apply in your case.

If you dispute the judgment creditor's right to garnish your property and believe that the judgment creditor should not be given your money, property, or credits, other than personal earnings, now in the possession of the garnishee because they are exempt or if you feel that this order is improper for any other reason, you may request a hearing before this court by disputing the claim in the request for hearing form, appearing below, or in a substantially similar form, and delivering the request for hearing to this court at the above address, at the office of the clerk of this court no later than the end of the fifth business day after you receive this notice. You may state your reasons for disputing the judgment creditor's right to garnish your property in the space provided on the form; however, you are not required to do so. If you do state your reasons for disputing the judgment creditor's right, you are not prohibited from stating any other reason at the hearing. If you do not state your reasons, it will not be held against you by the court, and you can state your reasons at the hearing. NO OBJECTIONS TO THE JUDGMENT ITSELF WILL BE HEARD OR CONSIDERED AT THE HEARING. If you request a hearing, the hearing will be limited to a consideration of the amount of your money, property, or credits, other than personal earnings, in the possession or control of the garnishee, if any, that can be used to satisfy all or part of the judgment you owe to the judgment creditor.

If you request a hearing by delivering your request for hearing no later than the end of the fifth business day after you receive this notice, it will be conducted in …....... courtroom …......., (address of court), at ….. m. on …......., .......... You may request the court to conduct the hearing before this date by indicating your request in the space provided on the form; the court then will send you notice of any change in the date, time, or place of the hearing. If you do not request a hearing by delivering your request for a hearing no later than the end of the fifth business day after you receive this notice, some of your money, property, or credits, other than personal earnings, will be paid to the judgment creditor.

If you have any questions concerning this matter, you may contact the office of the clerk of this court. If you want legal representation, you should contact your lawyer immediately. If you need the name of a lawyer, contact the local bar association.

..............................

Clerk of the Court

..............................

Date"

(b) The request for hearing form that must be served upon the judgment debtor shall have attached to it a postage-paid, self-addressed envelope or shall be on a postage-paid self-addressed postcard, and shall be in substantially the following form:

"(Name and Address of Court)

Case Number …........................ Date ….................

REQUEST FOR HEARING

I dispute the judgment creditor's right to garnish my money, property, or credits, other than personal earnings, in the above case and request that a hearing in this matter be held

..................................................................

(Insert "on" or "earlier than") the date and time set forth in the document entitled "NOTICE TO THE JUDGMENT DEBTOR" that I received with this request form.

I dispute the judgment creditor's right to garnish my property for the following reasons:

..................................................................

(Optional)

..................................................................

..................................................................

I UNDERSTAND THAT NO OBJECTIONS TO THE JUDGMENT ITSELF WILL BE HEARD OR CONSIDERED AT THE HEARING.

..............................

(Name of Judgment Debtor)

..............................

(Signature)

..............................

(Date)

WARNING: IF YOU DO NOT DELIVER THIS REQUEST FOR HEARING OR A REQUEST IN A SUBSTANTIALLY SIMILAR FORM TO THE OFFICE OF THE CLERK OF THIS COURT WITHIN FIVE (5) BUSINESS DAYS OF YOUR RECEIPT OF IT, YOU WAIVE YOUR RIGHT TO A HEARING AND SOME OF YOUR MONEY, PROPERTY, OR CREDITS, OTHER THAN PERSONAL EARNINGS, NOW IN THE POSSESSION OF (GARNISHEE'S NAME) WILL BE PAID TO (JUDGMENT CREDITOR'S NAME) TO SATISFY SOME OF YOUR DEBT TO (JUDGMENT CREDITOR'S NAME)."

 

[army judge]

Well, my reply had to be in three parts.
This is the last part, part 3.

(2) The judgment debtor may receive a hearing in accordance with this division by delivering a written request for hearing to the court within five business days after receipt of the notice provided pursuant to division (C)(1) of this section. The request may set forth the judgment debtor's reasons for disputing the judgment creditor's right to garnish the money, property, or credits, other than personal earnings; however, neither the judgment debtor's inclusion of nor failure to include those reasons upon the request constitutes a waiver of any defense of the judgment debtor or affects the judgment debtor's right to produce evidence at the hearing. If the request is made by the judgment debtor within the prescribed time, the hearing shall be limited to a consideration of the amount of money, property, or credits, other than personal earnings, of the judgment debtor in the hands of the garnishee, if any, that can be used to satisfy all or part of the debt owed by the judgment debtor to the judgment creditor. If a request for a hearing is not received by the court within the prescribed time, the hearing scheduled pursuant to division (A) of this section shall be canceled unless the court grants the judgment debtor a continuance in accordance with division (C)(3) of this section.

(3) If the judgment debtor does not request a hearing in the action within the prescribed time pursuant to division (C)(2) of this section, the court nevertheless may grant a continuance of the scheduled hearing if the judgment debtor, prior to the time at which the hearing was scheduled, as indicated on the notice to the judgment debtor required by division (C)(1) of this section, establishes a reasonable justification for failure to request the hearing within the prescribed time. If the court grants a continuance of the hearing, it shall cause the matter to be set for hearing as soon as practicable thereafter. The continued hearing shall be conducted in accordance with division (C)(2) of this section.

(4) The court may conduct the hearing on the matter prior to the time at which the hearing was scheduled, as indicated on the notice to the judgment debtor required by division (C)(1) of this section, upon the request of the judgment debtor. The parties shall be sent notice, by the clerk of the court, by regular mail, of any change in the date, time, or place of the hearing.

(5) If the scheduled hearing is canceled and no continuance is granted, the court shall issue an order to the garnishee to pay all or some of the money, property, or credits, other than personal earnings, of the judgment debtor in the possession of the garnishee at the time of service of the notice and order into court if they have not already been paid to the court. This order shall be based on the answer of the garnishee filed pursuant to this section. If the scheduled hearing is conducted or if it is continued and conducted, the court shall determine at the hearing the amount of the money, property, or credits, other than personal earnings, of the judgment debtor in the possession of the garnishee at the time of service of the notice and order, if any, that can be used to satisfy all or part of the debt owed by the judgment debtor to the judgment creditor, and issue an order, accordingly, to the garnishee to pay that amount into court if it has not already been paid to the court.

(D) The notice to the judgment debtor form and the request for hearing form described in division (C) of this section shall be sent by the clerk by ordinary or regular mail service unless the judgment creditor requests that service be made in accordance with the Rules of Civil Procedure, in which case the forms shall be served in accordance with the Rules of Civil Procedure. Any court of common pleas that issues an order of garnishment of property, other than personal earnings, under this section has jurisdiction to serve process pursuant to this section upon a garnishee who does not reside within the jurisdiction of the court. Any county court or municipal court that issues an order of garnishment of property, other than personal earnings, under this section has jurisdiction to serve process pursuant to this section upon a garnishee who does not reside within the jurisdiction of the court.

 

[pilot2969]

Thanks Army. Now my primary question is this, is my self-employment income, deposited into this bank account, considered personal earnings? I cannot find a good definition of personal earnings anywhere. I'm going to file my answer with the court and at least get the hearing scheduled to buy me some time, then get my bankruptcy filing rolling.

 

[army judge]

Thanks Army. Now my primary question is this, is my self-employment income, deposited into this bank account, considered personal earnings? I cannot find a good definition of personal earnings anywhere. I'm going to file my answer with the court and at least get the hearing scheduled to buy me some time, then get my bankruptcy filing rolling.

There you go.

You do know that it generally is better to let them have their judgment, and then file bankruptcy.

They can stop the process, if they know you're filing for BK.

They can wait until everything has been discharged and then file another claim after your previous debts have been discharged.

Every situation is different, so you need to look at all of your income sources.

Start protecting everything, now!

Is your wife a defendant in this matter, too?

Did they sue you personally, or your business?

What is the amount they are trying to extort our of you?

Actually, this is pathetic.

Chrysler stiffed all their creditors, TWICE.

Then the evil bastards go after the little guy.

Go figure.

 

[pilot2969]

LOL, tell me about the irony of the situation!

Well, they've already got their judgement, so this is their next step. I don't really have any assets that they can tap thankfully. So as long as the bank doesn't throw up any hurdles when I cash my checks instead of depositing them I am in the clear at this point.

It's funny that you ask about my wife, because the judgements that Chrysler obtained were against us jointly, our bank account is joint, yet this notice to garnish is aimed only at me as the defendant.

They didn't sue the business, all of the debt is personal, and I'm organized as an LLC. The problem is I have a personal account to separate my accounting from the business, so that adds an additional pain in the butt. I don't think they can pursue my LLC in any way, but who knows.

I think the total amount of extortion comes to around $25,000 - $30,000. We had two beautiful brand new vehicles, then the economy hit the tank and my business dropped big time. They sold the vehicles at auction for pennies on the dollar (which I don't understand why I should be liable for their crappy business practice on that end) and I'm stuck footing the bill. These guys are absolutely ruthless.

 

[army judge]

LOL, tell me about the irony of the situation!

Well, they've already got their judgement, so this is their next step. I don't really have any assets that they can tap thankfully. So as long as the bank doesn't throw up any hurdles when I cash my checks instead of depositing them I am in the clear at this point.

It's funny that you ask about my wife, because the judgements that Chrysler obtained were against us jointly, our bank account is joint, yet this notice to garnish is aimed only at me as the defendant.

They didn't sue the business, all of the debt is personal, and I'm organized as an LLC. The problem is I have a personal account to separate my accounting from the business, so that adds an additional pain in the butt. I don't think they can pursue my LLC in any way, but who knows.

I think the total amount of extortion comes to around $25,000 - $30,000. We had two beautiful brand new vehicles, then the economy hit the tank and my business dropped big time. They sold the vehicles at auction for pennies on the dollar (which I don't understand why I should be liable for their crappy business practice on that end) and I'm stuck footing the bill. These guys are absolutely ruthless.

Make sure you judgment proof your wife, too.
If these savages aren't able to rob you, they'll jack her next.
So, make sure you both discharge this bogus debt in BK.

When you cash checks, be careful.
They have ways of tracking your financial transactions.
Also, don't even get involved with those PayPal crooks.
A cash based debit card is a consideration, however.
Just hang on for a little while, guy.
Once the BK kicks in, their scam is over!

 

[mightymoose]

You could just open a new account at a different bank... they won't know about it unless you tell them. I suppose they knew about this account since you were making car payments to them...