Setting aside a judgment and garnishment


Paralegal Services Case Study

Without having served with a court claim properly, a credit card company obtained a judgment against Melissa (not her real name) in the amount of $8,666.69 pursuant to a Plaintiff’s Claim that it had issued in the Milton small Claims Court.  Melissa only found out about the judgment when her employer deducted money from her pay pursuant to a wage garnishment that the employer had received from the creditor. 

Background

Melissa’s husband was the main account card holder.  Melissa had received a supplementary credit card, which she had never used.  She and her husband had recently separated.  Sometime after having received the supplementary credit card, Melissa received a credit card statement which showed a balance owing of about $5,500.00.  Melissa checked and her credit card was missing.  She promptly made a police report of a stolen credit card.  She also called the credit card company and advised what had happened.  She also provided the credit card company with her new address as she had moved following the separation and was now living on her own.

Despite having reported this stolen card to the credit card company, Melissa continued to receive monthly statements at her new residence address with interest accruing on the balance.  She again called the credit card company and they said that they would note the file as ‘fraud’ and that she would not receive any more statements.  As advised by the credit card company, Melissa stopped receiving statements and she naturally thought that the matter was at an end.

One year later, Melissa became aware of the garnishment against her wages when so advised by her employer.  She had never received a Claim or a Garnishment. Melissa retained me to remove the garnishment and the judgment.

A search of the court file revealed that, notwithstanding that the credit card company had Melissa’s new address, the Plaintiff’s Claim had been served at Melissa’s old address and it never came to her attention as she had moved about 2 years earlier.  The notice of Garnishment had also never came to Melissa’s attention as it too had been mailed to Melissa at her old address.

I immediately brought a motion before the court to set aside the default judgment, to obtain permission to file a defence, to stay the garnishment, and for the return to Melissa of all monies that had been seized by the garnishment, all of which the court granted.

Based on the success of the motion, I was able to file Melissa’s defence and then attended at a settlement conference with Melissa.  While the other side did not actually withdraw its claim, it never took any steps to further advance its claim. Melissa received all of the garnishment funds back and the court ultimately dismissed the credit card company’s claim as abandoned.

Takeaways

There are two takeaways from this case:

  • Even though you do everything right, sometimes things still go horribly wrong.
  • The importance of maintaining and keeping good records. (It was Melissa’s complete and accurate record keeping that made it impossible for the credit card company to disprove the facts set out in our motion materials and our defence which allowed Melissa to get all of the garnishment money back and caused the credit card company to limp away in defeat, never to be heard from again.)

Small Claims Court Paralegal

ATTENDING COURTS FOR:
Brampton, Orangeville, Caledon, Mississauga, Milton, Barrie, Guelph, Richmond Hill, Toronto, and other surrounding areas.

To request a consultation with A. Perlman Paralegal Services call now (519) 943-0590, (416) 399-4826 or complete the following form.

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