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What Happens if the Named Plaintiff Didn't Authorize the Lawsuit

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  • 12-17-2012, 06:02 AM
    greenwoodguy
    What Happens if the Named Plaintiff Didn't Authorize the Lawsuit
    My question involves small claims court in the state of: IN

    Attorney for "Plaintiff" appears in court, states he represents XYZ Company. this is proven to be untrue by the Defendant. on the next appearance in court, the Attorney for the "Plaintiff" states he made an 'honest mistake' and that he represents ABC Company. after contacting ABC Company, the Defendant is provided a written statement from the ABC Company President that they know nothing of this case, that they have no judgements against the Defendant and if they did, they do not want to pursue it or collect it. he even recommends that to him that this sounds like a scam and that the Defendant should contact an Attorney.

    therefore since the Attorney for the "Plaintiff" has been proven to have lied under oath the first time and very possibly the second time, with the written statement from the aledged Plaintiff stating that they do NOT want to pursue or collect this judgement, should this be enough to get the judgement dismissed? if the Defendant has proven TWICE that the "Plaintiff" that the Attorney states he represents is either not the Plantiff or is not interested in pursuing this judgement, would that in fact mean there IS no Plaintiff and if there is no Plaintiff, there is no reason to continue any attempts to collect?
  • 12-17-2012, 08:05 AM
    Mr. Knowitall
    Re: What Happens if the Named Plaintiff Didn't Authorize the Lawsuit
    You will bring your motion in court, and properly support it, establishing that the lawyer was not authorized by the person who owns the debt to file the lawsuit. If the court requires an evidentiary hearing, you will attend your hearing with actual evidence and witnesses to present in support of your argument. In the alternative, the named plaintiff can come to court and petition for dismissal.

    There may be other or better approaches depending on the full facts, and it would seem that you're leaving some important facts out of your narrative.
  • 12-19-2012, 05:27 PM
    greenwoodguy
    Re: What Happens if the Named Plaintiff Didn't Authorize the Lawsuit
    this may sound odd, but someone changed the title of my thread. the original Plaintiff did authorize the judgement but after 19 years, has no interest in the pursuit or collection of it. although the Plaintiff has stated such in writting to the court, the Judge is keeping the garnishment order in place and refuses to dismiss the judgement.

    while the Court has proved to the Defendant that he owes the original Plaintiff "X" amount of dollars, the Defendant states he should pay but the question is 'how much'. the collection agency, due to their either incompetence, lack of effort or having ulterior motives, failed to contact the Defendant once in the past 19 years. all they had to do was pick up a phone book and they would have found the Defendant listed. there are no excuses. for that the Defendant believes the collection agency should not be rewarded with the 8% interest for the past 19 years. on the other hand, the Defendant doesn't feel that he should be rewarded by not paying anything, as he does agree that he owes the Plaintiff.

    the Defendant has offered to settle this judgement for the original amount of the judgement as a lump sum, but the collection agency has refused to accept the offer. the collection agency countered with a much larger lump sum offer but the Defendant does not have that kind of money immediately available.

    with the current garnishment order in affect, the Defendant is only taking home approximately $96.00/wk. why so little? his health insurance premiums for he and his wife are $280.00/wk. should he miss one day of work without pay, he would OWE his employer to cover the insurance premiums. he can't afford to have this garnishment taken from his check for the next 52+ weeks. his wife is on a fixed income, as she is unable to work due to her MS and is on disabilty.

    any suggestions on what to propose to the court for the Defendant to pay a fair settlement and get out from under this judgement?
  • 12-19-2012, 07:35 PM
    llworking
    Re: What Happens if the Named Plaintiff Didn't Authorize the Lawsuit
    Quote:

    Quoting greenwoodguy
    View Post
    this may sound odd, but someone changed the title of my thread. the original Plaintiff did authorize the judgement but after 19 years, has no interest in the pursuit or collection of it. although the Plaintiff has stated such in writting to the court, the Judge is keeping the garnishment order in place and refuses to dismiss the judgement.

    while the Court has proved to the Defendant that he owes the original Plaintiff "X" amount of dollars, the Defendant states he should pay but the question is 'how much'. the collection agency, due to their either incompetence, lack of effort or having ulterior motives, failed to contact the Defendant once in the past 19 years. all they had to do was pick up a phone book and they would have found the Defendant listed. there are no excuses. for that the Defendant believes the collection agency should not be rewarded with the 8% interest for the past 19 years. on the other hand, the Defendant doesn't feel that he should be rewarded by not paying anything, as he does agree that he owes the Plaintiff.

    the Defendant has offered to settle this judgement for the original amount of the judgement as a lump sum, but the collection agency has refused to accept the offer. the collection agency countered with a much larger lump sum offer but the Defendant does not have that kind of money immediately available.

    with the current garnishment order in affect, the Defendant is only taking home approximately $96.00/wk. why so little? his health insurance premiums for he and his wife are $280.00/wk. should he miss one day of work without pay, he would OWE his employer to cover the insurance premiums. he can't afford to have this garnishment taken from his check for the next 52+ weeks. his wife is on a fixed income, as she is unable to work due to her MS and is on disabilty.

    any suggestions on what to propose to the court for the Defendant to pay a fair settlement and get out from under this judgement?

    What is the actual percentage of after tax income that is being paid out in the garnishment?...and that is a ridiculously high weekly payment for employer group health insurance.
  • 12-19-2012, 08:33 PM
    jk
    Re: What Happens if the Named Plaintiff Didn't Authorize the Lawsuit
    Quote:

    this may sound odd, but someone changed the title of my thread. the original Plaintiff did authorize the judgement but after 19 years, has no interest in the pursuit or collection of it. although the Plaintiff has stated such in writting to the court, the Judge is keeping the garnishment order in place and refuses to dismiss the judgement.
    the judgment creditor (may or may not be the original plaintiff) can dismiss the judgment. If the lawyer acted against the judgment creditors desire, the judgment creditor should be filing complaints with the state bar and consider suing the lawyer.

    Quote:

    while the Court has proved to the Defendant that he owes the original Plaintiff "X" amount of dollars, the Defendant states he should pay but the question is 'how much'. the collection agency, due to their either incompetence, lack of effort or having ulterior motives, failed to contact the Defendant once in the past 19 years. all they had to do was pick up a phone book and they would have found the Defendant listed. there are no excuses. for that the Defendant believes the collection agency should not be rewarded with the 8% interest for the past 19 years. on the other hand, the Defendant doesn't feel that he should be rewarded by not paying anything, as he does agree that he owes the Plaintiff.
    the defendant should pay whatever the judgement is for plus any statutory interest that has accrued.




    Quote:

    the Defendant has offered to settle this judgement for the original amount of the judgement as a lump sum, but the collection agency has refused to accept the offer. the collection agency countered with a much larger lump sum offer but the Defendant does not have that kind of money immediately available.
    and? The court has already stated you owe however much the judgment is for (plus interest). If they judgment creditor does not wish to accept less than the full amount, they don't have to.

    Quote:

    with the current garnishment order in affect, the Defendant is only taking home approximately $96.00/wk. why so little? his health insurance premiums for he and his wife are $280.00/wk. should he miss one day of work without pay, he would OWE his employer to cover the insurance premiums. he can't afford to have this garnishment taken from his check for the next 52+ weeks. his wife is on a fixed income, as she is unable to work due to her MS and is on disabilty.
    there are limits as to how much can be withheld for such a garnishment.


    Quote:

    IC 24-4.5-5-105
    Limitation on garnishment and proceedings supplemental to execution; employer's fee
    Sec. 105. (1) For the purposes of IC 24-4.5-5-101 through IC 24-4.5-5-108:
    (a) "disposable earnings" means that part of the earnings of an individual, including wages, commissions, income, rents, or profits remaining after the deduction from those earnings of amounts required by law to be withheld;
    (b) "garnishment" means any legal or equitable proceedings through which the earnings of an individual are required to be withheld by a garnishee, by the individual debtor, or by any other person for the payment of a judgment; and
    (c) "support withholding" means that part of the earnings that are withheld from an individual for child support in accordance with the laws of this state.
    (2) Except as provided in subsection (8), the maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment to enforce the payment of one (1) or more judgments against him may not exceed:
    (a) twenty-five percent (25%) of his disposable earnings for that week; or
    (b) the amount by which his disposable earnings for that week exceed thirty (30) times the federal minimum hourly wage prescribed by 29 U.S.C. 206(a)(1) in effect at the time the earnings are payable;
    whichever is less. In the case of earnings for a pay period other than

    a week, the earnings shall be computed upon a multiple of the federal minimum hourly wage equivalent to thirty (30) times the federal minimum hourly wage as prescribed in this section.
    (3) The maximum part of the aggregate disposable earnings of an individual for any workweek which is subject to garnishment or support withholding to enforce any order for the support of any person shall not exceed:
    (a) where such individual is supporting his spouse or dependent child (other than a spouse or child with respect to whose support such order is used), fifty percent (50%) of such individual's disposable earnings for that week; and
    (b) where such individual is not supporting such a spouse or dependent child described in subdivision (a), sixty percent (60%) of such individual's disposable earnings for that week;
    except that, with respect to the disposable earnings of any individual for any workweek, the fifty percent (50%) specified in subdivision (a) shall be deemed to be fifty-five percent (55%) and the sixty percent (60%) specified in subdivision (b) shall be deemed to be sixty-five percent (65%), if and to the extent that such earnings are subject to garnishment or support withholding to enforce a support order with respect to a period which is prior to the twelve (12) week period which ends with the beginning of such workweek.
    (4) No court may make, execute, or enforce an order or process in violation of this section.
    (5) An employer who is required to make deductions from an individual's disposable earnings pursuant to a garnishment order or series of orders arising out of the same judgment debt (excluding a judgment for payment of child support) may collect, as a fee to compensate the employer for making these deductions, an amount equal to the greater of twelve dollars ($12) or three percent (3%) of the total amount required to be deducted by the garnishment order or series of orders arising out of the same judgment debt. If the employer chooses to impose a fee, the fee shall be allocated as follows:
    (a) One-half (1/2) of the fee shall be borne by the debtor, and that amount may be deducted by the employer directly from the employee's disposable earnings.
    (b) One-half (1/2) of the fee shall be borne by the creditor, and that amount may be retained by the employer from the amount otherwise due the creditor.
    The deductions made under this subsection for a collection fee do not increase the amount of the judgment debt for which the fee is collected for the purpose of calculating or collecting judgment interest. This fee may be collected by an employer only once for each garnishment order or series of orders arising out of the same judgment debt. The employer may collect the entire fee from one (1) or more of the initial deductions from the employee's disposable earnings. Alternatively, the employer may collect the fee ratably over the number of pay periods during which deductions from the employee's disposable earnings are required.


    (6) The deduction of the garnishment collection fee under subsection (5)(a) or subsection (7) is not an assignment of wages under IC 22-2-6.
    (7) An employer who is required to make a deduction from an individual's disposable earnings in accordance with a judgment for payment of child support may collect a fee of two dollars ($2) each time the employer is required to make the deduction. The fee may be deducted by the employer from the individual's disposable earnings each time the employer makes the deduction for support. If the employer elects to deduct such a fee, the amount to be deducted for the payment of support must be reduced accordingly if necessary to avoid exceeding the maximum amount permitted to be deducted under subsection (3).
    (8) A support withholding order takes priority over a garnishment order irrespective of their dates of entry or activation. If a person is subject to a support withholding order and a garnishment order, the garnishment order shall be honored only to the extent that disposable earnings withheld under the support withholding order do not exceed the maximum amount subject to garnishment as computed under subsection (2).
    (Formerly: Acts 1971, P.L.366, SEC.6.) As amended by Acts 1979, P.L.239, SEC.1; Acts 1982, P.L.151, SEC.1; P.L.248-1983, SEC.1; P.L.237-1985, SEC.1; P.L.102-1986, SEC.3; P.L.148-1988, SEC.1.
    If the amount withheld exceeds the amount allowed by law, the defendant needs to file a motion with the court to reduce the amount garnished.


    Quote:

    any suggestions on what to propose to the court for the Defendant to pay a fair settlement and get out from under this judgement?
    the amount owed
  • 12-20-2012, 06:29 PM
    greenwoodguy
    Re: What Happens if the Named Plaintiff Didn't Authorize the Lawsuit
    Quote:

    Quoting llworking
    View Post
    What is the actual percentage of after tax income that is being paid out in the garnishment?...and that is a ridiculously high weekly payment for employer group health insurance.


    the Defendant makes $500/wk. after taxes and health ins premiums, he was taking home approx $150/wk. the garnishment is approx $54/wk, leaving him only $96/wk takehome. with his wife on disability and his takehome being reduced by a third, they are really having a hard time making it.
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