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Wage Garnishment: What should you do?

by Fred Abramson on March 24, 2010 · 5 comments

 

Wage Garnishment is a very powerful tool for either the government (most commonly the IRS), a company or an individual to collect money damages.  If you are a plaintiff in a civil action, if you obtain a judgment you may be able to have the sheriff garnish the wages of the person you are suing.

If your wages have been garnished, the court has the final say on how much money can be withheld from your paycheck. Your employer is powerless to stop your wages from being withheld.

What to do if you do not believe that you owe the money?

  1. Go to the court clerk’s office in the county where the judgment has been entered. In the file there must be an affidavit of service.  The affidavit of service will state the manner in which the lawsuit was served upon you.  In New York Civil Court, after a judgment has been entered, the plaintiff is required to file a notice of entry and an affidavit of non-military service.  The court protects people serving in the military from being subject to a lawsuit while on active duty abroad.
  2. If you have not been properly served and you have a valid defense to the underlying action, you may make a motion to vacate default.   In addition, you may make an order to show cause to have the wage garnishment removed.  It is not uncommon for some law firms to use process servers who “sewer serve.” I reported about this issue a few months back, where American Legal Service was accused by the Attorney General of sewer serving.
  3. Once in court, the judge may schedule a traverse hearing where the judge will determine whether service of process was proper.
  4. You also need to move for a motion to vacate default within one year of the judgment being entered.

What should you do if you want to garnish someone’s wages?

  1. Perform case investigation before starting your lawsuit. If the person you are suing is insolvent, it may not be worth the expense of starting an action against him or his company.
  2. You must obtain a court order.  If you are owed money, in New York you may commence in action in either Small Claim, Civil Court, Supreme Court or Federal Court.  The court where you start your lawsuit is dependent among a variety of factors.
  3. You must then enter judgement with the court.  Be aware that in most cases you can recover costs of the action.
  4. Obtain the name of the employer.
  5. Bring the judgement to the sheriff. The sheriff will garnish the wages.

The Law Office of Frederic R. Abramson practices civil litigation in New York State. If you have any questions regarding wage garnishment, contact me at 212-233-0666.

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Ten Things you must know before entering into a contract

by Fred Abramson on May 13, 2009 · 1 comment

While litigation may sometimes be your only recourse, many times it is a result of signing a bad contract or not fully examining the contract you have signed.  Here are ten things to know before entering into an agreement in New York that can help protect your business and your assets:

1.      Know the Other Party

Be sure that the business you are contracting with is registered to do business in the state in which you operate your business.  Should there be a problem later on, it will be much easier to institute a lawsuit as the states maintain addresses for service of process on registered corporations.  In addition, if the business is not properly registered in the state, there could be legal issues with your contract.  The business should also be licensed in the specific type of business it conducts, if this is required.

2.       Pricing Issues

If you are a buyer or a seller, know what you are paying or getting paid, when the money is due, how it is to be paid, where it is being paid to.


3.      What is the Exact Product or Service

While this may seem obvious there are thousands of lawsuits on just this issue.  Be sure you and the other party are on the same page, literally and figuratively.

4.      Delivery of the Goods or Services

Specify exact time frames for delivery of the product or service and when payment is due in relation to this time frame.

5.      Condition of the Product or Service

Are the items new or used?  If used, how much?  If new, in original packaging or repackaged?  If a service contract, specify who will be doing the service and his or her credentials?

6.      Warranties

What are the guaranties on the product or service?  What period of time do they cover?  What is the procedure for repairing or replacing an item or correcting a service mistake?


7.      Getting out of the Contract

While most contracts are made to avoid getting out of them, you can sometimes negotiate an “out” clause for poor performance or lack of proper delivery or other essential things.

8.      Renewal of the Contract

Is there an automatic renewal?  Is there any option to renew?

9.      Default

There are several ways to default on a contract. Two prevalent ways are non-payment and non-performance.  Non-payment can include not getting paid in full, on time or at all.  Non-performance can be not doing the job properly, in full, or not how you expected it to be done.  All of these can be combated with remedies in the contract.

10.  Remedies

Make sure the contract has a section dealing with remedies for defaults.  Remedies are compensation to the injured party for such defaults.  Outside of the contract there are other ways to be compensated for default in contracts, including state statutes, federal statutes like the UCC, fraud actions and illegality of the contract, dealing with minors, duress, undue influences, etc.

If you have any questions regarding contract law, contact me at the Law Office of Frederic R. Abramson at 212-233-0666

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