Saturday, December 29, 2012

When a general denial is not good enough

Moving past the statutory language of Florida's Head of Family garnishment exemption brings me to read a few Florida appellate court decisions on the subject. The first opinion I encounter is Caproc Third Avenue, LLC v. Donisi Insurance, Inc., 67 So.3d 312, 313 (FL 4th DCA, 2011), and I see how easy it might be for a non-lawyer to misread the meaning of the court's decision.

Judgment debtor defendant Donisi filed a sworn affidavit to claim the Head of Family exemption and the creditor's attorney swore an oath to nothing but a general denial.

As the Florida District Court of Appeal, Fourth District, described it:
". . . . Caproc’s attorney, Justin D. Jacobson, Esq., responded by executing an affidavit entitled “Plaintiff’s Denial Under Oath of Defendant’s Affidavit for Exemption from Garnishment Under Florida Statute § 222.12. The attorney’s affidavit stated that he personally appeared before a notary and that, after being duly sworn, pursuant to section 222.12, Florida Statutes (2009), 'Plaintiff hereby denies under oath that the Defendant is entitled to the exemption claimed in the Affidavit for Exemption.' The judgment debtor moved to strike the attorney’s affidavit on the grounds . . . . " [emphasis added]
The trial court judge granted Donisi's Motion to Strike (See note below) Caproc's affidavit and the appellate court agreed that the affidavit was legally insufficient. While the appeals court discussed in some detail the statutory necessity of plaintiff itself to swear the opposing affidavit, I contend this is the least significant aspect of the the opinion.

If Caproc's attorney had produced credible specific evidence that Donisi had falsified his claim of exemption, I doubt that any Florida judge would care much who signed the affidavit. Every good judge would want to hear more, at a formal court evidentiary hearing.

In other words, even if plaintiff Caproc had made the exact same affidavit, I'd argue the affidavit was still legally insufficient.


Note: Judges generally do not take significant action in a case unless one of the parties makes a formal request, either in writing or orally in open court and on the record. If there is a problem with an opposing party's affidavit, a Motion to Strike is one good way to bring it to the court's attention.

Monday, December 24, 2012

5 ways to attack an affidavit

A unilateral sworn and signed written statement of facts, voluntarily made, is known as an affidavit. One who swears an oath and signs is called an affiant. An affidavit is not a court pleading, per se, because it may originate from a non-party and affidavits generally do not ask the court to take action. A similarly sworn court document is called a verified pleading.

Affidavits are frequently used in the preliminary stages of court proceedings, but only rarely are they admitted as evidence at trial. Affidavits are used in emergency situations when time is short and the need for court action is great, such as with emergency protective orders. Affidavits are also used to increase court efficiency by identifying those situations where the facts are not disputed. If there really is no disagreement between the parties about what happened, then there may be no genuine need for the time and expense of a full-blown trial, and a motion for summary judgment may be justified.

Regardless of the use to which an affidavit may be employed in modern legal practice, the characteristics of a well-crafted affidavit are the same throughout. I am indebted for this to an excellent article published in the January, 2010, issue of the South Carolina Lawyer by attorneys Christopher Kelly and Laura Simons, Attacking Affidavits: Maintaining the Integrity of the Process, and a 2008 memorandum of law by Andrea Kuperman, Admissibility Requirements for Summary Judgment Affidavits. In general, an affidavit may be attacked for the following reasons:
  1. If the formalities of a sworn statement are lacking. An affidavit should show that the person signing the statement was first sworn to an oath that the statements are true and then be at risk for the penalties of perjury if they are not true.

  2. If the person making the affidavit is not a competent witness. A competent witness is capable of understanding the serious nature of a sworn oath. A very young child or one suffering severe mental disability may not qualify as a competent witness in general. Likewise, one who is profoundly intoxicated or under the influence of powerful medications may be temporarily incompetent to make a meaningful oath. An affidavit should state facts that establish the affiant’s competency.

  3. If the affiant is an attorney for one of the parties. In most jurisdictions it is a violation of professional ethics for an attorney for one of the parties to be a witness. I can think of no good reason why an offer of evidence by way of an affidavit should be an exception to this. This is not an issue of competency.

  4. If an affidavit is to be used in a legal proceeding, it should contain specific statements of fact that would be admissible as evidence at trial, just as if the affiant were testifying as a live witness in court. All the rules of evidence concerning firsthand knowledge, opinion, speculation, hearsay etc. may come into play.

  5. In a similar vein, the statements of fact in an affidavit should be specific. Although vague and conclusory statements of ultimate facts may be appropriate for notice pleading, they are not useful as proof.
This is but a brief overview. As with all else, check your local jurisdiction.

Monday, December 17, 2012

Shifting burdens

Shifting burdens

Everyone who watches Hollywood-based television has been exposed to the concept called burden of proof. Law and order type crime drama and popular press news coverage of reality-based criminal trials has made the government’s burden of proof beyond a reasonable doubt part of the shared cultural experience. Almost as many people understand that in non-criminal, or civil law, court proceedings, the party with the burden of proof is subject to a somewhat less stringent standard which is frequently phrased as proof by the preponderance of the evidence.

Yet ‘burden of proof’ is not a unified or monolithic concept. The phrase is simply a shorthand expression of two distinct but related procedural concepts:

  • The burden of moving forward by producing admissible evidence, and; 
  • The burden of persuasion. 

 The popular conception for burden of proof emphasizes the latter element, or the burden of persuasion. The burden of persuasion generally does not shift from one party to another during the course of a court or administrative proceeding, but sometimes it can.

The burden of persuasion may not rest exclusively on just one side of a legal proceeding. One party may bear the burden of persuasion on some issues, but with respect to other legal issues the burden may rest on the opposing side. It all depends on the specific issue.

The burden of going forward with evidence, however, may shift several times from one side to another during the full course of a proceeding. Using a criminal law example, at the very beginning of a case immediately following arrest by the police, the government prosecutor may have the burden of producing enough credible evidence to persuade a judge or magistrate there is ‘probable cause’ to believe a crime was committed by the defendant to justify his or her temporary incarceration. Probable cause is a much less stringent burden of persuasion compared to ‘beyond a reasonable doubt.’

If the matter proceeds to trial, the government again goes first with the burden of introducing at least some evidence for every single element of a crime and that the defendant is the one who did the deed. When the government completes its offer of evidence, or rests its case, the burden to move forward shifts and the defendant has an opportunity to offer evidence to contradict or confound the government’s case, if the defendant chooses to do so. In many states the burden to prove an insanity defense rests on the defendant, who must introduce evidence and persuade in order to be successful.

If any phase of a legal proceeding ends with the party bearing the burden to produce evidence fails to do so adequately, and there is zero evidence in support of one or more of the essential legal elements of a claim or defense, the judge may summarily terminate the proceeding, in whole or in part, in favor of the party on the other side.

Wednesday, December 12, 2012

Why not a legal form for that?

I’ve been working with Florida’s Head of Family statutory exemption and the question in the back of my mind has been, why not create a general purpose form so that non-lawyers can easily claim the exemption for themselves by just filling in the blanks? The idea has a superficial attraction, if things were only that simple.

Lawyers, businesses and governments use forms every day for standardized transactions. But they each employ trained professionals who know which form to use, and what the form’s limitations are. In the arena of Florida debtors claiming exemptions there may be a few commonly recurring situations, but there is no single standardized transaction. At best, there might be several different forms for the various configurations of circumstances, but no single all-purpose form is likely.

Still, the person seeking to use the form would need a certain minimum understanding of the big picture to know which specific form to select. Forms are useful tools in the right hands, but they cannot substitute for understanding.

In the context of Florida’s Head of Family exemption, a standardized form for claiming the exemption could be extremely misleading.

Fill out the form; file the completed form to claim the exemption and, voilĂ , get the exemption! Yes?

It’s probably not quite that simple. Claiming the exemption is just the first step in what could easily evolve into a long court battle. The other side might not sit still while you nothing more than file a piece of paper to keep your paycheck or bank account for yourself. The other side has the right to question your claim of exemption and to deny the truth of what you have claimed. Your creditor might likely put your claim to the test. Then, the ball is back in your court and you must come up with legally acceptable evidence and a persuasive legal argument to convince a judge of your claim.

Mindlessly filling out a form will not prepare you for that. A legal form is no substitute for understanding.

Saturday, December 8, 2012

Specialized courts

Modern life is so vast and complex, the law and the legal system must be equally vast and complex to deal with the numerous different types of problem that arise. Nearly everyone knows there is a difference between a criminal court action and a civil court action, and if you watch TV you may also know that large urban areas may have traffic courts that do nothing but handle minor traffic violations. Technically, these are criminal actions even if the penalty is nothing more than a money fine. Or, small claims courts that specialize in civil actions below a specified dollar amount.

Most people understand that the U.S. legal system has always been divided between trial courts that are the first to hear witnesses, to look at evidence and to make judgment calls, with or without a jury, and appellate courts that review the work of trial courts.

In the world of courts and judges there is a division of labor and subject specialization that most non-lawyers may have never considered. At the federal level are bankruptcy courts and tax courts, for example, that do nothing but handle disputes in those respective legal areas. There are various administrative law judges, or 'hearing officers' as they are sometimes called, that are somewhat apart from the general judicial system even if ultimately answerable to it. Social Security is one example. The denial of a Social Security claim is first appealed to a Social Security administrative law judge who does nothing but decide Social Security disagreements. There are many of these specialized avenues of dispute resolution, depending upon the nature of the dispute.

What brought this to mind was a recent announcement on the Kentucky Court of Justice website that a new three-year program has started in Jefferson County, Kentucky, focusing on military veterans who get into trouble because of drug abuse. This new program for veterans is a supplement to the existing Jefferson County Drug Court, but it is the first program of its kind in Kentucky because of the high number of military veterans living in Louisville.

The program is a collaborative effort between local prosecutors, judges, law enforcement, medical providers and non-government social services. Specifically:
"The Administrative Office of the Courts is collaborating on this project with the Office of the Jefferson County Attorney, the Robley Rex Veterans Administration Medical Center, Jefferson County Drug Court, Seven Counties Services and Morehead State University."  Leigh Anne Hiatt, APR, Public Information Officer, Administrative Office of the Courts
What may be different from the popular conception of what courts do is the focus on solving the problem and providing treatment, rather than just dishing out punishment. The program is funded by a by a three-year$350,000 grant from the Bureau of Justice Assistance of the U.S. Department of Justice.

Thursday, December 6, 2012


Legislative bodies all across the United States and at all levels of government, from city councils to the U.S. Congress, are busy all the time passing new laws. Many shelves of bookcase space is devoted to just 200 plus years of Federal legislative enactments. Keeping track of it all and making it as accessible as possible is a big job.

A single Act of Congress may have many different part, on several different subjects and it may reference or impact upon numerous preexisting laws.

The Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 is a good example. Dodd–Frank addresses both a reform of Federal securities law and a reform of Federal consumer protection laws. The first focuses upon the activity of financial institutions, which is mainly of interest to Wall Street lawyers, and the second focuses upon such matters as consumer credit cards and payday loan, which is of interest to everyone else.

The Congressional Act itself, with all its various parts, is officially known as Public Law (or P.L.) 111-203, 124 Stat. 1376, and you can read the Public Law version online courtesy of the Government Printing Office. As an aside, the '111' of  P.L. 111-203 signifies the 111th U.S. Congress (2009 - 2011).

The various Public Laws and other Acts of Congress are collected and published at the end of a Congressional session in the U.S. Statutes at  Large (Stat.) The United States Statutes at Large are the official source for the laws and concurrent resolutions passed by the United States Congress.

The United States Code (U.S.C.) is created and maintained by a group of busy professionals who take the different parts of Congressional Acts, divide them up into logical groups and arrange them by topic. This way, all the Federal laws on Consumer Protection, for example, can be conveniently found all in one book.

This is codification, which is the process of creating a code. The U.S. has the United States Code, every State has its own state law code, and local governments have their versions too, all arranged by subject. Think building code, zoning code, fire code etc.

For the vast majority of day-to-day legal research and writing, it is to the various codes that we turn and to which we make reference.

United States Law Online: United States Code, Statutes at Large, and Public Laws, The Law Library of Congress.

Wednesday, December 5, 2012

The law: Version control

The United States legal system revolves around a few basic primary sources:
  • Published court decisions;
  • Court rules;
  • Legislative acts, or statutes, and;
  • Administrative regulations.
Each state and the federal system has its own sets of these, and they are all subject to change at any time. You can think of laws and regulations as being like different versions of Microsoft's Windows operating system, on steroids. All the time they are coming out with the new and improved version just when you became familiar with the old version.

The first item on the list, published court decisions, is the exception.

A published court decision does not change once it is published. Later court decisions can change the meaning or the validity of the earlier decision, but they don't go back to the first decision to add a footnote letting you know that it has been changed. They do not do that. It is one possible reason why some lawyers sometimes drink too much. It is a constant worry that they missed out on an important change.

The main trick for researching court decisions is to work backwards in time, and start with the newest decision first. Older cases are still sometimes very useful, but more skepticism and research is needed.

Court rules, legislative acts and administrative regulations are a little easier, in this respect: They are updated and supplemented regularly and each rule or statute generally has a revision history. This is an example from the Kentucky Rules of Civil Procedure, CR 11 Signing of pleadings motions, and other papers; sanctions:
This rule was first adopted by the Kentucky Supreme Court in 1953 but amended in 1963 and 1989. If you are reading a Kentucky Appellate Court decision from 1959 discussing this CR 11, you know it is a somewhat different rule they are talking about and there is no point looking for case law before 1953. 

Tuesday, December 4, 2012

PTFA does NOT expire December 31, 2012

The Protecting Tenants at Foreclosure Act is a Federal law that went into effect during 2009 as part of a larger Act called the Helping Families Save Their Homes Act of 2009, Title VII, Public Law 111-22. The Act gave additional protection to innocent third-party tenants renting and occupying premises that went into foreclosure. The Act was intended as a temporary expedient and it was originally slated to expire on December 31, 2012.

 However, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) changed the expiration date to December 31, 2014.

The provisions of the Act, as amended, are set out in 12 USC § 5220 note. Literally, in the notes to that section, but also provided here:

Effect of Foreclosure on Preexisting Tenancy  
 Pub. L. 111–22, div. A, title VII, § 702,May 20, 2009, 123 Stat. 1660, as amended by Pub. L. 111–203, title XIV, § 1484(1),July 21, 2010, 124 Stat. 2204, provided that: 
“(a) In General.—In the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real property after the date of enactment of this title [May 20, 2009], any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to 
“(1) the provision, by such successor in interest of a notice to vacate to any bona fide tenant at least 90 days before the effective date of such notice; and  
“(2) the rights of any bona fide tenant, as of the date of such notice of foreclosure 
 “(A) under any bona fide lease entered into before the notice of foreclosure to occupy the premises until the end of the remaining term of the lease, except that a successor in interest may terminate a lease effective on the date of sale of the unit to a purchaser who will occupy the unit as a primary residence, subject to the receipt by the tenant of the 90 day notice under paragraph (1); or  
“(B) without a lease or with a lease terminable at will under State law, subject to the receipt by the tenant of the 90 day notice under subsection (1), except that nothing under this section shall affect the requirements for termination of any Federal- or State-subsidized tenancy or of any State or local law that provides longer time periods or other additional protections for tenants.  
“(b) Bona Fide Lease or Tenancy.—For purposes of this section, a lease or tenancy shall be considered bona fide only if 
“(1) the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant;  
“(2) the lease or tenancy was the result of an arms-length transaction; and

“(3) the lease or tenancy requires the receipt of rent that is not substantially less than fair market rent for the property or the unit’s rent is reduced or subsidized due to a Federal, State, or local subsidy. 
 “(c) Definition.—For purposes of this section, the term ‘federally-related mortgage loan’ has the same meaning as in section 3 of the Real Estate Settlement Procedures Act of 1974 (12 U.S.C. 2602).”

Louisville Legal Aid Society, Tenants and Foreclosure: Questions and Answers About Rights for Louisville Renters - Kentucky Law

Jennings Strouss, Attorney, What You Need to Know About the "Protecting Tenants at Foreclosure Act"

Monday, December 3, 2012

Online legal resources for Kentucky small claims

Legal self-help is much easier with Internet access to nearly every legal research tool you might need. Here are a few links to get you on your way, if you are a Kentucky resident.

Small Claims Court specific:

General legal resources:

Saturday, December 1, 2012

A cause of action

A man walked into a lawyer's office, sat down and launched into his story. There is always a story. Some people think that being called to answer in court is like going to the principal's office. If you can tell a sad enough story or devise a good enough excuse, then you're off the hook. Most people don't know what type of story  a judge needs to hear. That's why we have lawyers. The lawyers understand the rules of legal story-telling.

Other people think of courts as lottery machines. If you buy a ticket, you have a chance of winning a bazillion dollars. Again, this is not how it works.

So, the man tells his story to the lawyer. One day the man had car trouble while driving on the expressway and he pulled his car over to the side of the road. As he was outside the car looking under the hood, a big eighteen-wheeler came barreling past and one of its wheels came flying off.

The lawyer asks, "Did the wheel hit your car?"

The man, "Nope."

The lawyer, "Did the wheel hit you?"

The man, "Nope. The wheel flew right over my head an landed in a field. It scared the heck out of me. Let's sue."

The lawyer, "Nope."

The man lacked a legally recognized "cause of action." Now, if the truck tire had hit the man in the head and put him in the hospital, then his story world have been much closer to being the type of story the lawyer could work with. There would have been actual physical damage to the man's body, a hospital bill to pay, possibly lost income, and probably a lot of genuine pain. Just being frightened generally doesn't count for much.

You could sue, but you would not win. Lawyers like to win.

Friday, November 30, 2012

Legal research and writing for the non-lawyer: Rules of citation

The easiest way to win a legal argument and to convince a judge to do what you want is to find a respected authority who has already decided and discussed the same legal issue favorably to you, in writing. For this reason, legal briefs and arguments are peppered with quotes and references from statutes, court decisions, regulations and law review articles, to name a few of the more important types of authority commonly used.

To be effective and verifiable, each of these references must be accompanied by a clear indication of the original source material, that is to say, a citation.

For example: Pierson v. Coffey, 706 S.W.2d 409, 413 (Ky.App. 1985)

This is a standard citation to a specific opinion of the Kentucky Court of Appeals, in the format preferred in the Kentucky court system. By looking at this citation, any lawyer or judge would immediately know where to find this court opinion to read it for herself. State court systems and the federal courts each have their own way of citing statutes, court cases and every other thing imaginable, and they have rules for proper citations. That is a lot of different rules.

Every lawyer and law student is familiar with The Bluebook, A Uniform System of Citation®, which is a collection of all the rules of all the different jurisdictions. The Bluebook is comprehensive, it is updated frequently, it is expensive, and it is unnecessary for self-help legal purposes. The Bluebook is for professional use.

Do-it-yourself law for non-lawyers does not need such comprehensive detail. You can often Google a state name along with "rules of legal citation" to find the information you need for your state online, for free. For example, Delaware's rules for citation are available online - Guide To the Delaware Rules of Legal Citation.

If you cannot find the rules for your state, there is an excellent beginner's substitute for the Bluebook offered by the Legal Information Institute at Cornell University. It is available online, Introduction to Basic Legal Citation, and it is also offered for download in three different e-book formats.

Wednesday, November 28, 2012

What's the maximum amount of wage garnishment?

The Federal Consumer Credit Protection Act of 1968, as amended in 1977, set national restrictions on wage garnishment, applicable in each of the 50 states. Some states have established greater restrictions, but none may allow lesser restrictions. So, the maximum amount that may be garnished from wages under Federal law is the maximum everywhere in the United States even though the individual states are allowed to provide a lower maximum, and many have done so. In other words, the states may be more debtor-friendly than the Federal law, but they cannot be less so.

The relevant Federal statute is found at 15 USC § 1673 - Restriction on garnishment. "No court of the United States or any State, and no State (or officer or agency thereof), may make, execute, or enforce any order or process in violation of this section." - 15 USC § 1673(c).

Different types of debt - different limits

These Federal law restrictions on wage garnishment do not apply to:
(1) The collection of any Federal or State tax, and;
(2) Orders of a United States judge in a Chapter 13 Bankruptcy proceeding.
        - 15 USC § 1673(b)(1)(B and C).

This Federal statute envisions two different type of debt, and it imposes different limits on wage garnishment for each type, with a few variations:
  1. Court ordered support payments, and;
  2. All other debts.
With either type of debt, wage deductions required by law are subtracted before any garnishment calculation is made. Examples of legally required deductions are federal, state and local income taxes, Medicare tax, Social Security contributions and the employee portion of state unemployment compensation insurance.

Deductions that are not required by law do not count to reduce your disposable income. These include union dues, life and health insurance and most retirement plan contributions.

In short, earnings - taxes = disposable wages subject to garnishment.

Wage garnishment for court ordered support payments

The rules are different depending upon two factors:
  1. If the support payment is more than 12 weeks past due, and;
  2. If you are providing support for a spouse or dependent child in addition to the person covered by the support order.
There are four different combinations of these two factors, and they each have different rules.
  • Support payments 12 weeks past due and no other support obligation
    - 65% of disposable wages may be garnished.
  • Payments 12 weeks past due with another support obligation
    - 55% of disposable wages may be garnished.
  • Support payments up-to-date and no other support obligation
    - 60% of disposable wages may be garnished.
  • Support payments up-to-date with another support obligation
    - 50% of disposable wages may be garnished.

Wage garnishment for all other debts

For all other debts, the maximum wage garnishment amount is 25% of disposable income or thirty times the Federal minimum wage on a weekly basis, whichever is less. It's not that complicated.

Right now the Federal minimum wage is $7.25 per hour. That times thirty equals $217.50 for one week. If your disposable income for one week of work is less than $217.50, then none of it may be garnished to pay general debts.

If your disposable income for one week of work is greater than $217.50, then it is necessary to solve two simple arithmetic problems and then to compare the results.

First, subtract $217.50 from your weekly disposable earnings.

Second, multiply your weekly disposable earnings by 0.25.

Then, whichever is LESS, that's the maximum amount that can be garnished.

Of course, this is all based on weekly earnings. If you get paid once every two weeks or on some other payment schedule, you have to make adjustments.

And remember, different states may offer lower maximums and other types of exemptions.


Tuesday, November 27, 2012

Kentucky Consumer Protection Act

The full statutory text of the Kentucky Consumer Protection Act (KCPA) can be found at Kentucky Revised Statutes (KRS) Chapter 367, sections 367.110 to 367.360. 

The statement of Legislative intent is contained in KRS section 367.120:
"The General Assembly finds that the public health, welfare and interest require a strong and effective consumer protection program to protect the public interest and the well-being of both the consumer public and the ethical sellers of goods and services;  toward this end, a Consumers' Advisory Council and a Division of Consumer Protection of the Department of Law are hereby created for the purpose of aiding in the development of preventive and remedial consumer protection programs and enforcing consumer protection statutes."
Kentucky's Consumer Protection Act provides that “unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”  KRS 367.170(1).

KRS 367.220(1) authorizes private civil actions to "recover actual damages" suffered "as a result of the use ... of a method, act or practice declared unlawful by KRS 367.170."

A significant piece of this statute is the provision in KRS 367.220(3) for attorney's fees.
"In any action brought by a person under this section, the court may award, to the prevailing party, in addition to the relief provided in this section, reasonable attorney's fees and costs."
As attorney A. Nicholas Naiser points out:
"Accordingly, while plaintiffs’ attorneys should always consider the KCPA before filing a complaint because of the potential for attorneys’ fees, it is important to research judicial interpretations of the KCPA to ensure that such a claim is viable."Kentucky Tort Law Blog, What is the Kentucky Consumer Protection Act?
It must be pointed out that this attorney fee provision is a two-edged sword. Since there is no guarantee of ultimately being the "prevailing party," the person filing the lawsuit could end up being the one who pays the other side's legal fees.

Monday, November 26, 2012

Across state lines

Every court in the United States operates under geographic limits to its power and authority, or its "jurisdiction." A state court in Utah, for example, has no authority over a private person residing in Alabama who stays in Alabama and who does not conduct any business in Utah. Sometimes the question of a state's jurisdiction over people living elsewhere can be very complicated.

 But, you can always be called into court in the state where you live.

 The question is, what about when you get sued in one state but you move to another state before the money judgment in the first state is paid off? Will the judgment follow you around the country wherever you go?

 The short answer is "yes."

 It is not quite automatic, but it is cheap and easy for a judgment creditor to register a judgment from one state court in a different state. At last count, 47 states and several U. S. Territories have enacted the Uniform Enforcement of Foreign Judgments Act. In this usage "foreign" means a different state in the U. S., not a foreign country. Even in those few states that have not adopted the Uniform Act, there are other procedures that allow debt collections to follow you around the country. Further, a handful of states have slightly modified the Uniform Act to exclude the automatic importation of default judgments. Check your local statute.

 Keep in mind that an order of wage garnishment is not the same as a judgment, but its effect depends upon the geographic location of the employer, and not the location of the debtor-employee.

Sunday, November 25, 2012

A checklist for the wage garnishment debtor

There are few things in life more insulting, embarrassing and shocking  then to have your wages garnished. Even if you know that it's coming, or suspect the possibility, it is still a big shock when it happens. The universal question is, "What can I do about it."

The first priority is to get informed, both about the law and the facts.

The first understanding is in the United States there are a few Federal wage garnishment laws that apply to every state, but the main legal provisions are based upon State law, and the laws are very different from one State to the next. So, the Federal wage garnishment laws apply everywhere in the United States no matter where you live and the State wage garnishment laws apply depending upon where you live, where you work and where your employer does business. See the limits on wage garnishment put in place by Federal law: What's the maximum amount of wage garnishment?

The second understanding is that different wage garnishment rules apply depending upon the type of debt that's being collected. A wage garnishment for a credit card debt is different from a garnishment for a child support debt, for example. There are several other types of debt, with differing garnishment rules, in addition to these.

An important third understanding is the availability of free or low-cost legal services. Legal Services Corporation lists affiliates in each of the fifty States and the District of Columbia. In order to qualify for free legal assistance from a program funded by LSC, you must not have income and assets over a certain level. The programs only accept cases that fall within its established priorities, which may or may not include wage garnishments. But, you must contact your local program directly to find out if you meet the eligibility guidelines and if your legal problem is among the program's priorities for services. If your local program is unable to help you directly, they may be able to suggest other useful resources in your area.

The final understanding is that you can always do it yourself, without a lawyer. You have a Constitutional right to represent yourself in court. Some cases are simple and others are complex. Some of the more complex issues of garnishment law involve debtors, employers and creditors in different states. See: Can garnishment follow you Across State Lines?


A. Basic information you must have:
  1. The name of the court that ordered wage garnishment and the court identification number for your garnishment. 
  2. The name of the garnishment creditor and its lawyer. You need contact information.
  3. The source of the debt being collected. This usually involves a prior lawsuit and court judgment against you. It is useful to have all the details about that prior lawsuit too. It might have been in a different court, or even in a different state. What is the total amount owed? What is the interest rate you are now being charged on this amount?

B. Options:
  1. Pay the whole debt, plus interest, in full.
  2. Seek bankruptcy protection.
  3. Take the required steps to claim optional State law exemptions, if any are available.
  4. Seek to invalidate or set-aside the prior judgment.
  5. Negotiate a voluntary payment plan that does not involve wage garnishment.
  6. Seek to have the amount of the garnishment reduced for hardship reasons.

Wednesday, July 18, 2012

Legal self help: Be your own lawyer?

For anyone who aspires to think like a lawyer, it is important to know there is usually more than one way to accomplish any specific desired result, in theory, but the various possible methods are not equally useful or effective in practice. "In theory there is no difference between theory and practice. In practice there is." - Yogi Berra. 

To learn to think like a lawyer is no exception. In modern times the main method of  learning this is to attend a law school for three years and study hard. Prior to the advent of the modern law school, the method was to read appellate decisions and textbooks or to apprentice with an older lawyer, until you knew enough to pass the test. If you are a non-lawyer and have a legal problem you wish to handle yourself, without the immense expense of hiring a lawyer, going to law school just for that reason alone is not practical. It's faster and cheaper to pay the lawyer,compared to law school. So, if you aim to solve your own legal problems while avoiding lawyers, you are on your own to figure it out.

Be your own lawyer? It's possible, but not easy.