Served with a debt collection lawsuit? You must respond within 20 days.

November 18, 2009 by Todd Murray · Leave a Comment 

In Minnesota, a lawsuit begins when the defendant is served. “Served” is just a fancy legal word that basically means “delivered”. There are two main ways you can be served: (1) by having the lawsuit handed to you personally; or (2) by having it left at your home with someone of appropriate age. Once you’ve been served, you have 20 days to answer the lawsuit. An answer is a formal legal document that responds to the allegations in the complaint. This post talks about how to answer a lawsuit.

If you don’t answer the lawsuit within 20 days, your opponent can apply for a default judgment. The court considers all of the allegations in the complaint to be true and gives your opponent whatever they are asking for. In other words, your opponent wins not because they have a better case, but because you didn’t participate. In debt collection cases, a default judgment is entered administratively by a court clerk without a judge ever seeing the case.

A judgment, whether entered by default or otherwise, is a court ruling that you owe the money. And once a debt collector has a judgment, they have the power to garnish your bank account and your paycheck.  Altough judgments can sometimes be overturned, for the most part they are final. That’s why its so important to answer the lawsuit within the 20 days. If you don’t, you no longer can raise any defenses and will probably have to either negotiate a settlement or payment plan with the debt collector or, if the situation is serious enough, consider bankruptcy.

If you live in Minnesota and want help answering a debt collection lawsuit, feel free to contact me by using the contact form in the upper right corner of this page. I offer a number of flexible representation options, so even if you can only afford to pay a few hundred dollars, I might be able to help you.

Claiming garnishment exemptions in Minnesota

June 29, 2009 by Todd Murray · 1 Comment 

Editors’ note: this post only discusses exemptions in Minnesota. For a detailed explanation of exemptions in another state, please consult with a consumer attorney in your area.

Without question, dealing with garnishment is the most frustrating aspect of debt collection for consumers. Whether it’s a bank or wage garnishment, having a debt collector seize your hard-earned money is a significant disruption to your life and can cause a great deal of stress. But many sources of money are exempt from garnishment, which means that a debt collector can’t keep your money if it comes from one of those sources.

In Minnesota, virtually all forms of need-based government aid are exempt from garnishment. Some of the most common forms of need based aid are social security, supplemental security income (SSI), energy assistance, and medical assistance (MA). Other types of need based aid that are exempt include: Minnesota family investment program (MFIP), emergency assistance and emergency general assistance (EA & EGA), work first program, general assistance medical care (GAMC), and Minnesota supplemental assistance (MSA). This isn’t a complete list and virtually any form of government aid that you receive based on your income is probably exempt from garnishment under Minnesota law. Other common Minnesota exemptions include any money you receive for child support, unemployment benefits, workers’ compensation, and veterans’ benefits. Some of the less common exemption sources of funds include retirement pensions (up to a certain dollar amount), disability, and insurance proceeds for damages to exempt property (usually your home or vehicle). And while it’s not technically an exemption, under current Minnesota law a debt collector can’t keep money from a joint account that doesn’t belong to the judgment debtor.

If you’re facing a wage garnishment, it’s important to know that a debt collector can only take 25% of your after-tax wages. This exemption also applies if the debt collector garnishes your bank account after you deposited your pay check. And if you make only the federal minimum wage (or less) your wages are usually completely exempt from garnishment. Further, if you receive any form of need-based aid, such as those described above, your wages are totally exempt from garnishment. Minnesota law provides for this exemption if you currently receive need-based aid, or if you received any need-based aid in the last 6 months. This is an important provision for Minnesotans receiving energy assistance. Most recipients of energy assistance receive it from October through March, which make the recipient’s wages exempt for the entire year if she re-enrolls in the program the following season.

To claim an exemption, it’s important first to understand the garnishment process. This post gives a general overview of how the process works. For a wage garnishment, the debt collector must provide you with a form notifying you of their intent to garnish and an exemption form 10 days before starting the wage garnishment. To claim an exemption from a wage garnishment, all you have to do is write the appropriate exemptions on the exemption form and mail it back to the debt collector. It’s critical to do this immediately, or at least within 10 days of receiving the form. You should also provide proof of your exemption, such as your benefit notice, with the exemption form.

For a bank garnishment, you won’t get notice of the garnishment until 5 days after the bank freezes your money. Fill out the exemption form that the bank and debt collector mail to you, noting the appropriate exemption. You also need to provide proof that the funds that were seized by the bank arose from an exempt source. This last point is the cause of considerable confusion for consumers. It’s not enough to show the debt collector that you receive exempt money, you also have to prove that the funds that were actually seized contained this exempt money. Debt collectors will refer to this as “tracing”. Sending the debt collector a copy of your bank statements that show the deposit of exempt funds, along with your benefit statements will usually accomplish the task.

If you merely mail the completed exemption form to the debt collector, and fail to provide the required tracing, the debt collector will probably object to your exemption and refuse to return your money. If this happens, you should schedule a court hearing in front of a judge to determine whether your funds are exempt. Court administration will help you set up the hearing and provide notice of the hearing to the debt collector. On the day of your hearing, be sure to bring proof of your exemption AND bank statements proving the funds seized were from an exempt source. Failure to do so could delay the court’s decision or could lead to the court denying your exemption.

Finally, it’s important to understand that claiming an exemption when you’re not entitled to one could lead to the court ordering you to pay a penalty to the debt collector. Make sure any exemptions you claim are legitimate.

If you still have questions about garnishment, feel free to download my free guide How to Survive Garnishment. It’s packed with information and tips for handling garnishment and will answer most of your questions about the garnishment process. If the guide doesn’t answer all of your questions, I offer 30 minute consultations for $150.

And if you’re being garnished and were never served with a lawsuit, I may be able to help you stop the garnishment by vacating the underlying judgment. Feel free to use the contact form in the upper right corner of this page to contact me to discuss the possibility of getting the judgment vacated.