AZ rules state that the garnishee must be served by a court official or sherrif. I was not served at all, but I now have a garnishment. I can see there is a writ of garnishment and an affadavit of service logged with the courts. How do I make this stop?
You would have to first check the Service of Process statute in Arizona. It would probably fall under R.C.P. if AZ falls the Federal Rules. If they meet none of the requirements, you can move the court to vacate. Not an easy thing to do insofar as it is your burden to prove a negative.
Here is the statute. The part that is confusing, is it that my employer must be served in person, or I? 12-1574. Issuance, service and return of writ; notice to debtor A. When the judgment creditor has complied with the applicable provisions of sections 12-1572 and 12-1573, the clerk, justice of the peace or city or town magistrate shall issue a writ of garnishment of monies or property and a summons directed to the sheriff, constable or any officer authorized by law to serve process in the county where the garnishee is alleged to be, commanding him to immediately summon the garnishee to appear before the court out of which the writ issued within the time specified in the writ to answer the writ. B. The writ shall state: 1. The amount of the outstanding balance due on the judgment, including accrued interest and allowable costs, as of the date of the issuance of the writ, and the rate at which interest accrues on that judgment. 2. The name and address of the garnishee or his authorized agent. 3. The name and address of the judgment creditor and his attorney, if applicable. 4. The last mailing address of the judgment debtor known to the judgment creditor. C. The judgment creditor, in the manner required for a summons by rules of the court in civil matters, shall serve on the garnishee two copies of the summons and writ of garnishment, a copy of the underlying judgment, four copies of the answer form, two copies of the notice to judgment debtor and request for hearing form and one copy of the instructions to garnishee provided for in section 12-1596. D. Within three days, not including weekends and holidays, the garnishee shall deliver to the judgment debtor a copy of the summons and writ of garnishment, a copy of the underlying judgment and the notice to judgment debtor and request for hearing form.
The aspect I do know is that if an employer is served with an order for garnishment, they must adhere to it. Otherwise there are fines and legal consequences. I do know that often the employer does not know if the "employee" has been served notice or not. The employer only reacts to the order as received, and must comply per garnishment requirement. However, common sense says the law requires you to be notified, hence there should be records of (at least) attempts to serve you personally. Perhaps there were attempts, but bad information prohibitied service. Though, if you are being garnished currently, seems they could have "found" you at your place of employment. Now that I think of that possibility, check with your employer for the papers. In previous settings, I have seen the papers brought to the employer, it was verified that the employee was on site, and the employer then "gives" them to the employee.
Biz gives sound advice here but, I was originally talking about Service of the summons. To stop the garnishment, you would need to challenge that you were never properly served with the Complaint/Summons rather, than after the fact with the Writ. That is where the Motion to Vacate applies.
I went to the courthouse at lunch and got a copy of the cetificate of service. It states that all the forms from the plaintiff were sent in the manner below: Name: (my workplace, Inc.) thru a statutory agent Date: 11/06/07 11am Place: - shows the statutory agents address Manner: By leaving 1 copy of the above documents with Jane Doe, Clerk authorized. On 11/7/07 I mailed by regular first class mail, in a sealed envelope, postage prepaid, copies of the Writ of Garnishment, initial notice to judgement debtor & request for hearing to defendant/judgement debtor (me) and inidicates my current address.
Apex, I completely agree, these are the required actions. The poster should now follow your advise. I'm merely adding experiences, generally no one questions the papers served. It is just another thing for the payroll dept. to deal with. I now look back at these incidents, and realize they were not legal. I feel often the "jump" to getting the money is the sole goal. Sometimes it appears the "Server" relies upon the "tag you're it" approch. The poster should see what was served to his employer, and follow up. Just be aware that your payroll department does not look at this with the same urgency and scrutiny that you do, nor questions it.
So if I understand you correctly I may have the ability to put in a motion to vacate the judgement solely based off of not being served properly for the Writ of Garnishment - correct?
No, you have to prove up that you were never properly served with the Summons. The writ has nothing to do with the potential ability to vacate. Think of it this way, the underlying judgment must be vacated in order to preclude the furthering of the execution. So, we're talking about the service of the initial action. If you can attack that, then you may have something. Not trying to be a wise guy, I just want to be clear.
I was correctly served on the original complaint and summons for the judgement. They won the judgement and now are moving to garnishment - for the garnishment I was not properly served whereas the AZ law states that I must be.
Here is where the statue indicates that I need to be formally served. Specifically paragraph "A." below 12-1574. Issuance, service and return of writ; notice to debtor A. When the judgment creditor has complied with the applicable provisions of sections 12-1572 and 12-1573, the clerk, justice of the peace or city or town magistrate shall issue a writ of garnishment of monies or property and a summons directed to the sheriff, constable or any officer authorized by law to serve process in the county where the garnishee is alleged to be, commanding him to immediately summon the garnishee to appear before the court out of which the writ issued within the time specified in the writ to answer the writ. B. The writ shall state: 1. The amount of the outstanding balance due on the judgment, including accrued interest and allowable costs, as of the date of the issuance of the writ, and the rate at which interest accrues on that judgment. 2. The name and address of the garnishee or his authorized agent. 3. The name and address of the judgment creditor and his attorney, if applicable. 4. The last mailing address of the judgment debtor known to the judgment creditor. C. The judgment creditor, in the manner required for a summons by rules of the court in civil matters, shall serve on the garnishee two copies of the summons and writ of garnishment, a copy of the underlying judgment, four copies of the answer form, two copies of the notice to judgment debtor and request for hearing form and one copy of the instructions to garnishee provided for in section 12-1596. D. Within three days, not including weekends and holidays, the garnishee shall deliver to the judgment debtor a copy of the summons and writ of garnishment, a copy of the underlying judgment and the notice to judgment debtor and request for hearing form.
The address they stated the Writ was mailed to, was it your current/correct address? So, you never receieved the Writ via mail? Was a copy left at your place of employment? It sounds like you'll have a tough time fighting this one. If they succeeded in winning the judgement, then the next step would be garnishment writ. If you can prove you didn't receive the notice, it seems the only thing you could buy is some time.
Biz is exactly right. Unfortunately, even if you can show that the writ was improperly served, they'll just serve it properly thereafter. It's what is called procedural manuevering but, its futile in this instance. Without being able to attack the underlying judgment, you're cooked. I'd consider settling this if at all possible.
After more research I am afraid you two are right. Too bad it is for 25k, I think this will pull me under.
There is nothing shameful about seeking bankruptcy protection. The same people that disparage it are the ones that seem to be very pro-business and anti-consumer. While that is fine, its hard to reconcile the fact that businesses seek protection all of the time. In any event, file if you must and discharge the judgment. Honestly, you may come out on the other end better off in terms of credit scores. Life does happen and contrary to popular opinion, I don't feel people choose not to pay their debts. That mindset is illogical.
I agree, if you have a garnishment order and you can't afford to make a settlement agreement, then bankruptcy may be your only viable alternative. If you can afford a settlement offer, you might try that first.
