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Asked in Atlanta, GA Nov. 05, 2015 ,  8 answers Visitors: 282
My wife's bankruptcy has been discharged about 4 months ago. Her wages are being garnished now.
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8 Answers

Anonymous
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Posted on / Nov. 10, 2015 20:31:04

OUCH. Some of the comments are harsher than normal. These things do happen, even to people who have an attorney. That Georgia case law referenced above is also 11th Circuit case law. While it may be necessary to reopen the case, under 11 U.S.C. 727 a discharge "discharges the debtor from all debts that arose before the date of the order for relief under this chapter." I am assuming that the case was a Chapter 7, because you did not specify.

Step 1 is to get an attorney to send the creditor notice of the filing and discharge, along with a cease and desist letter.

Step 2 is to litigate the matter if necessary. What you are describing is a discharge injunction violation. This can be handled in several ways. One of which is filing an adversary proceeding to address the violation. THIS IS NOT A SELF HELP OPTION. Best of luck.

Anonymous
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Posted on / Nov. 09, 2015 19:50:30

Where did your wife file her Chapter 7 case? Was it in Georgia? Or did she file her case in Florida? Did she have an attorney file the case, or did she file without a lawyer? You need to get her 341 hearing notice, and her discharge order together, and send that information to the creditor's lawyer. If that does not stop the garnishment, you will need to hire a bankruptcy attorney to file a motion to reopen your wife's Chapter 7 case. The new creditor must be added to the case once it is reopened, and a motion must be filed to terminate the garnishment. A motion must also be filed to avoid the judicial lien as well. Some bankruptcy courts may deny a motion to reopen her case, under the theory that all pre-petition unsecured debt has already been discharged. Until these things can happen, the garnishment will proceed, and your wife's paycheck will continue to get hit with the garnishment. There is a possibility that your wife will get some money back from this garnishment, but that concern is secondary to getting this garnishment stopped.

Anonymous
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Posted on / Nov. 06, 2015 21:36:06

This is a situation that occurs now and then. Creditors do not always understand bankruptcy laws because they aren't face with those issues on a regular basis. You really likely need to contact a bankruptcy attorney and get them to contact the creditor. You will have to retain a bankruptcy attorney (and it will cost you money), but they can ensure that the garnishment stops. The attorney will also be able to likely get your money back. The attorney also has the ability to ask the bankruptcy court to step in if there is still an issue and the creditor does not take your attorney's legal opinion. While I am sure you wanted to save money by not retaining an attorney, under these circumstances investing an attorney will save you money, time, and headache.

Anonymous
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Posted on / Nov. 06, 2015 18:51:39

You question says that you are located in Atlanta, Georgia, and you also reference "the court in Florida." If "the court in Florida" is where the judgment/garnishment is, then I strongly suggest that you start by talking with a consumer protection attorney from Florida. You can look for an attorney at www.naca.net.

A Florida attorney (near the judgment / garnishment court) may be able to explore a number of alternatives to get you relief. Perhaps you will have to attempt to re-open the bankruptcy, but Florida garnishment law does afford many consumer protections for people being garnished. Also, depending on the facts, the judgment itself may be subject to attack on state law grounds (such as whether the summons was served properly).

If you have to re-open the bankruptcy, you will need an attorney near the bankruptcy court that granted the discharge.

I wish you well in getting this resolved.

Anonymous
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Posted on / Nov. 06, 2015 13:37:34

One of our Judges in Georgia has an opinion online which states that unlisted debts are dischargeable unless they are of the sort where dischargeability could have been an issue. Only the latter would require reopening the case, and the entire matter can be resolved usually through making the creditor aware that their debt was pre-petition. The issue you have is that your case appears to be in Florida, and there may be no such precedent there. Also, if the creditor is garnishing you, the creditor must have gotten a judgment against you at some point. If before you filed bankruptcy, not only would you need to reopen that case, but you would also need to file a motion to avoid that lien. If the judgment was entered after the bankruptcy, a call from a bankruptcy attorney can often have the judgment voided voluntarily. I suggest calling and consulting with one of the attorneys on this site who handles bankruptcy cases in the district where your case was filed. They should be able to tell you the quick and simple way to resolve this.

Anonymous
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Posted on / Nov. 06, 2015 12:50:45

I concur with the recommendation of my distinguished colleague attorney Dorothy G. Bunce. Absent some other facts which would change the situation, you need to retain an experienced local Bankruptcy attorney to resolve this matter once and for all. Use AVVO's Find a Lawyer tool to select a qualified attorney. Good luck.

Anonymous
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Posted on / Nov. 06, 2015 01:27:58

This never happens when people are represented by an attorney. Penny wise, pound foolish. This creditor is playing you for a fool. Unless you have a strong and costly bankruptcy attorney on your team, keep doing what you have been doing, and you surely will keep getting abused. Hope this perspective helps.

Anonymous
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Posted on / Nov. 06, 2015 01:05:49

Go see a bankruptcy attorney to file a motion to reopen the case and add the debtor.

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