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  1. #1
    Join Date
    Feb 2010
    Posts
    3

    Unhappy Garnish Hold on a Checking Account

    My question involves collection proceedings in the State of: Virginia.

    I just found out I have a garnish hold on my checking acct. I did not receive a summons which is probably due to the fact that I recently moved. I am a recent college graduate still in search of a job. Any advice on how I should proceed?

    I would be more than willing to work on a settlement, but it would have to be a monthly payment I have no money or savings. I talked to capital one once I found out and they seem reluctant to work anything out they are just going to wait till the end date of the garnish.

    Any help would be much appreciated.

    Thanks.

  2. #2
    Join Date
    Sep 2005
    Location
    Behind a Desk
    Posts
    98,846

    Default Re: Garnish Hold on a Checking Account

    Have you found out who sued you, in what court, how they claim to have served you with the lawsuit and how long ago the judgment was entered? Or is the "I did not receive a summons" part only in relation to the garnishment, as opposed to the underlying judgment?

  3. #3
    Join Date
    Feb 2010
    Posts
    3

    Default Re: Garnish Hold on a Checking Account

    I was sued by Capital One on a past due credit card. They were able to get the garnish summons because I did not receive the initial summons for court so I was judged guilty on default for not attending.

    Is there a process to try and void the initial judgment since I never received the summons? I know in some states you can motion for a vacate of judgment but I couldn't find a similar process for Virginia. The only thing I found was for motion of aside on judgment.

    I just spoke to them again and they are unwilling to work on any other settlement except for full payment. What should I expect on garnish court trial?

  4. #4
    Join Date
    Mar 2005
    Location
    Michigan
    Posts
    28,906

    Default Re: Garnish Hold on a Checking Account

    Pursuant to the state's court rules,
    Quote Quoting Rules of Supreme Court of Virginia, Part 3 - Rule 3:19. Default
    Rule 3:19. Default.](a) Failure Timely to Respond. A defendant who fails timely to file a responsive pleading as prescribed in Rule 3:8 is in default. A defendant in default is not entitled to notice of any further proceedings in the case, including notice to take depositions, except that written notice of any further proceedings shall be given to counsel of record, if any. The defendant in default is deemed to have waived any right to trial of issues by jury.

    (b) Relief from Default. Prior to the entry of judgment, for good cause shown the court may grant leave to a defendant who is in default to file a late responsive pleading. Relief from default may be conditioned by the court upon such defendant reimbursing any extra costs and fees, including attorney's fees, incurred by the plaintiff solely as a result of the delay in the filing of a responsive pleading by the defendant.

    (c) Default Judgment and Damages.
    (1) Except in suits for divorce or annulling a marriage, the court shall, on motion of the plaintiff, enter judgment for the relief appearing to the court to be due. When service of process is effected by posting, no judgment by default shall be entered until the requirements of Code § 8.01-296(2)(b) have been satisfied.

    (2) If the relief demanded is unliquidated damages, the court shall hear evidence and fix the amount thereof, unless the plaintiff demands trial by jury, in which event, a jury shall be impaneled to fix the amount of damages.

    (3) If a defendant participates in the hearing to determine the amount of damages such defendant may not offer proof or argument on the issues of liability, but may (i) object to the plaintiff's evidence regarding damages, (ii) offer evidence regarding the quantum of damages, (iii) participate in jury selection if a jury will hear the damage inquiry, (iv) submit proposed jury instructions regarding damages, and (v) make oral argument on the issues of damages.
    (d) Relief from Default Judgment.
    (1) Within 21 Days. - During the period provided by Rule 1:1 for the modification, vacation or suspension of a judgment, the court may by written order relieve a defendant of a default judgment after consideration of the extent and causes of the defendant's delay in tendering a responsive pleading, whether service of process and actual notice of the claim were timely provided to the defendant, and the effect of the delay upon the plaintiff. Relief from default may be conditioned by the court upon the defendant reimbursing any extra costs and fees, including attorney's fees, incurred by the plaintiff solely as a result of the delay in the filing of a responsive pleading by the defendant.

    (2) After 21 Days. - A final judgment no longer within the jurisdiction of the trial court under Rule 1:1 may not be vacated by that court except as provided in Virginia Code §§ 8.01-428 and 8.01-623.
    Quote Quoting Virginia Code, Sec. 8.01-428. Setting aside default judgments; clerical mistakes; independent actions to relieve party from judgment or proceedings; grounds and time limitations.
    A. Default judgments and decrees pro confesso; summary procedure. - Upon motion of the plaintiff or judgment debtor and after reasonable notice to the opposite party, his attorney of record or other agent, the court may set aside a judgment by default or a decree pro confesso upon the following grounds: (i) fraud on the court, (ii) a void judgment, (iii) on proof of an accord and satisfaction, or (iv) on proof that the defendant was, at the time of service of process or entry of judgment, a person in the military service of the United States for purposes of 50 U.S.C. app. § 502. Such motion on the ground of fraud on the court shall be made within two years from the date of the judgment or decree.

    B. Clerical mistakes. - Clerical mistakes in all judgments or other parts of the record and errors therein arising from oversight or from an inadvertent omission may be corrected by the court at any time on its own initiative or upon the motion of any party and after such notice, as the court may order. During the pendency of an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending such mistakes may be corrected with leave of the appellate court.

    C. Failure to notify party or counsel of final order. - If counsel, or a party not represented by counsel, who is not in default in a circuit court is not notified by any means of the entry of a final order and the circuit court is satisfied that such lack of notice (i) did not result from a failure to exercise due diligence on the part of that party and (ii) denied that party an opportunity to pursue post-trial relief in the circuit court or to file an appeal therefrom, the circuit court may, within 60 days of the entry of such order, modify, vacate, or suspend the order or grant the party leave to appeal. Where the circuit court grants the party leave to appeal, the computation of time for noting and perfecting an appeal shall run from the entry of such order, and such order shall have no other effect.

    D. Other judgments or proceedings. - This section does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or proceeding, or to grant relief to a defendant not served with process as provided in § 8.01-322, or to set aside a judgment or decree for fraud upon the court.

    E. Nothing in this section shall constitute grounds to set aside an otherwise valid default judgment against a defendant who was not, at the time of service of process or entry of judgment, a servicemember for purposes of 50 U.S.C. app. § 502.
    Quote Quoting Virginia Code, Sec. 8.01-623. Injunction against decree subject to bill of review; limitations to bill of review.
    A court allowing a bill of review may award an injunction to the decree to be reviewed. But no bill of review shall be allowed to a final decree, unless it be exhibited within six months next after such decree, except that a person under a disability as defined in § 8.01-2 may exhibit the same within six months after the removal of his or her disability. In no case shall such a bill be filed without the leave of court first obtained, unless it be for error of law apparent upon the face of the record.
    What do you believe a "garnish court trial" to be?

  5. #5
    Join Date
    Feb 2010
    Posts
    3

    Default Re: Garnish Hold on a Checking Account

    Quote Quoting aaron
    View Post
    Pursuant to the state's court rules,



    What do you believe a "garnish court trial" to be?
    I think its a trial because after long search I was able to find a copy of the original summons and there was another summons (neither of which I have received) relating to the garnishment with a trial date set for a month from now. I don't fully understand what the trial fully means, is it to figure out how much they can take out of my bank account? What exemptions can I file for? Most of my income goes to paying off student loan, credit card relieve program I'm already in, and car and health insurance, so if that is valid I have a very small disposable income. I am working part-time as a server as I continue to search for full time work.

    So are you saying I am can still appeal the first summons? If so how should I proceed if not what do I need to know in preparation for the garnishment hearing? From talking to the person at Capital One it seemed as if he was trying to convince me not to show up for the latter.

    To clarify what I'm confused about, the first summons was for a warrant in debt and the other which has a trial date in a month is for garnishment. What are the legal possibilities for the latter if I lose at the hearing?

    And what can I do except for full settlement of the debt which I do not have the money for to prevent them from garnishing my wages and unfreeze my bank account. I want to settle but I can only do so by making monthly payments but as I said Capital One is unwilling to hear about until after the court date,

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