Gillman & Gillman | Experienced New Jersey Bankruptcy Lawyers » Debt Collection

Wage Garnishments Are Enforced On First Come First Serve Basis

Allen Gillman — Tue, 29 Jun 2010 22:02:54 +0000

We are sometime asked by debtors whose whose earning are being garnished and whose employer receives a second wage garnishment whether both garnishments will be enforced at the same time. The Courts of the State of New Jersey have explained wage garnishments are enforced sequentially. As a result creditors are benefited from ‘being first in line’.

“Two wage executions may not be satisfied at the same time but instead are satisfied sequentially in order of priority. N.J.S.A. 2A:17-52. Thus, it is critical that the judgment debtor who is first in time should have his or execution placed in effect, upon proof of the debt and the income, with no delay. See Family Finance Corp. v. Jenkins, 131 N.J. Super. 336, 329 A.2d 604 (Cty. Ct. 1974) (holding that where a judgment creditor has accepted voluntary payments in lieu of enforcing [***6] his execution, a junior creditor with a later execution is entitled to satisfaction first.) Once in effect, that execution retains priority over other, later executions although it may be modified to accommodate the aims of justice. N.J.S.A. 2A:17-55. This is the policy reason behind the mandatory language in N.J.S.A. 2A:17-50. The mandatory scheme was created to avoid a situation in which one judge denies a wage execution and another judge thereafter grants one to a less diligent junior [*305] creditor. That is the evil which flows when the discretionary view of an initial grant of an execution is adopted.

Although this protects a debtor being garnished for more than the amount allowed under the provisions of N.J. Stat. § 2A:17-56 which limits the amount which may be garnished, each garnishment may be enforced in turn and as a result the wages of those who have experienced serious debt problems may be garnished for many years.

What Debt Collectors Can and Cannot Do?

Justin Gillman — Wed, 27 May 2009 14:03:30 +0000

People who are experiencing serious debt problems face many difficult decisions. If they feel that they are unable to pay their creditors and debt, they may face the difficult choice of whether to consider a Chapter 7 or Chapter 13 Bankruptcy. These difficult decisions are often exacerbated by constant, harassing phone calls from debt collectors.

The Fair Debt Collection Practices Act (FDCPA) is Intended to Protect Consumers from Abusive Practices by Debt Collectors.

A debt collector MAY NOT:

Contact a third party about your debt for any purpose other than to locate you.
Identity the debt collection company name to a 3rd party without being expressly asked.
Disclose to a third party a debt is allegedly owed.
Communicate with a single third party more than once.
Communicate or or attempt to communicate with you at inconvenient times or places.
Contact you at work after being told not to.
Communicate with you after receiving a letter from you (a) with a request they cease and desist all contacts or (b) that you refuse to pay the debt.
Engage in harassing, oppressive or abusive conduct.
Use or threaten violence or other criminal means, or use obscene or profane language.
Cause your telephone to ring repeatedly or continuously.
Use false, deceptive, or misleading representations or methods, including but not limited to (a) falsely representing it is affiliated with the United States or any State; (b) falsely representing the character, amount, or legal status of the debt; (c) falsely representing or implying that nonpayment would result in arrest or imprisonment or the seizure, garnishment, attachment, or sale of property or wages; (d) threatening to take an action against that cannot be legally taken or that was not actually intended to be taken; (e) falsely representing or implying that you committed a crime; or (f) communicating or threatening to communicate false or likely false credit information.
Use unfair or unconscionable means in an attempt to collect a debt, including but not limited to: (a) trying to collect an amount not expressly authorized by the debt agreement/contract or other applicable law; (b) threatening to or actually depositing a postdated check prior to the date on such check; or (c) taking or threatening to take money or property where there was no present right.
Continue to contact you after receiving your cease and desist or request for validation letter.
Force you to pay the debt prior to expiration of your 30 day right to dispute.
Sue you except in the county you signed the contract, you live or own property that is the subject of the debt.
Falsely represent themselves as attorneys.

A debt collector MUST:

Provide the notices required by 15 USC § 1692g either in the initial communication with you or in writing within 5 days after.
Notify you in the initial communication it is “an attempt to collect a debt and any information obtained would be used for that purpose.”
Notify you during each collection contact the communication was from a debt collector
Disclose the caller’s individual identity in every telephone call to you.

Despite the protections which are available under this and other State and Federal Laws, those encountering debt problems, debt collection, and debt collectors, or considering a Chapter 7 or Chapter 13 Bankruptcy Case should consult with an attorney experienced in these matters regarding their rights.

Fair Debt Collection Practices Applies to Mortgagee’s Attorneys in Foreclosure Proceedings

Allen Gillman — Tue, 05 May 2009 23:01:30 +0000

Attorneys Who Regularly Engage in Collecting Consumer Debts, Including Those Representing Mortgagees in Foreclosure Proceedings, Are Subject to the Fair Debt Collection Practices Act.

The United States Supreme Court in the Matter of Heintz v. Jenkins, 514 U.S. 291, 294-95, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995) Rejected the Assertion that a Law Firm Representing the Original Creditor Is Not a Debt Collector Under the Provisions of the Fair Debt Collection Practices Act.

Some law firms have argued that if they represent the original creditors they are not considered as debt collectors under the provisions of Fair Debt Collection Practices Act. This assertion which is in direct conflict with the provisions of the Act and the authority of the United States Supreme Court in the matter of Heintz supra.

In Heintz, the Court squarely addressed the issue of whether a law firm representing an original creditor was subject to the provisions of the Act. The plaintiff in this case, Darlene Jenkins, borrowed money from the Gainer Bank in order to buy a car. She defaulted on her loan. The bank’s law firm then sued Jenkins in state court to recover the balance due. As part of an effort to settle the suit, a lawyer with that law firm, George Heintz, wrote to Jenkins’ lawyer. His letter, in listing the amount she owed under the loan agreement, included $ 4,173 owed for insurance, bought by the bank because she had not kept the car insured as she had promised to do. Jenkins then brought this Fair Debt Collection Practices Act suit against Heintz and his firm Heintz at 292

The Court found that the Act “applies to attorneys who ‘regularly’ engage in consumer-debt-collection activity, even when that activity consists of litigation,” for two reasons: First, the Act defines the “debt collector[s]” to whom it applies as including those who “regularly collec[t] or attempt[t] to collect, directly or indirectly, [consumer] debts owed or due or asserted to be owed or due another.” § 1692a(6). In ordinary English, a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings is a lawyer who regularly “attempts” to “collect” those consumer debts.

In the recent matter of Barrows v. Chase Manhattan Mortg. Corp., 465 F. Supp. 2d 347, 356 2006, the Court found that the law firm of Hubschman & Roman, PC, and John J. Roman, Jr., Esquire representing the mortgagee in foreclosure proceeding are “debt collectors” under the provisions of the FDCPA” Following Congress’s removal of language in the FDCPA that expressly excluded attorneys from FDCPA liability, the United States Supreme Court clarified the lower courts’ disagreement over whether attorneys could[**14] be classified as “debt collectors” and be subject to liability under the Act.

In Heintz v. Jenkins, 514 U.S. 291, 294-95, 115 S. Ct. 1489, 131 L. Ed. 2d 395 (1995), the Court found that FDCPA “applies to attorneys who ‘regularly’ engage in consumer-debt-collection activity, even when that activity consists of litigation,” for two reasons: First, the Act defines the “debt collector[s]” to whom it applies as including those who “regularly collec[t] or attempt[t] to collect, directly or indirectly, [consumer] debts owed or due or asserted to be owed or due another.” § 1692a(6). In ordinary English, a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings is a lawyer who regularly “attempts” to “collect” those consumer debts.

Under the Act, a debt collector may not communicate with a consumer if inter alia ” [I} the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of or can readily ascertain, such attorney’s name and address unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer” 15 USC Sec 1692c(2) ” The term communication means the conveying of information regarding a debt directly or indirectly to any person through any medium”. 15 USC Sec 1692a