A judgment-creditor emptied a bank account I was going to use to modify my mortgage. Now I'm being evicted. What can I do?
California resident. Chase put a levy on my checking account and took EVERY penny in there. I was in a huge car accident, my baby was 6 months at the time, broke my back and had to have 2 back surgeries. My baby is now 2 year and I've just been getting back on my feet. I'm trying to get a loan modification on my house (taking forever) and today I got a notice of foreclosure. ALL the money I had was in that account and if I have to move out I have no money with which to do so and in the meantime I can't pay my utilities or buy food for my baby! Is there ANYTHING I can do?
We need to review wage garnishment, bank levies, foreclosures, and bankruptcy to lay the groundwork for you to understand your rights and options. You do not mention medical debt, other debt related to replacing your vehicle, or your employment status or any settlements that may be pending relating to your car accident, but the information below will also apply to any other unsecured debt.
Wage Garnishment or Bank Levy
Bills.com has information on bank levies and garnishments. Basically, the procedure for levying bank accounts, as well as what amount, if any, a debtor can claim as exempt from the levy, is governed by state law. Many states exempt certain amounts and certain types of funds from bank levies, so a debtor should review his or her state's laws to find if a bank account can be levied. See the Bills.com resource State Consumer Protection Laws and Exemptions for an overview of each state's rules. Here you can find what exemptions apply in California.
Keep in mind that a creditor, or a collection agent that owns a debt account, has several legal means of collecting a debt. But before the creditor can start, the creditor must go to court to receive a judgment. A court (or in some states, a law firm for the plaintiff) is required to notify the debtor of the time and place of the hearing. This notice is called a "summons to appear" or a "summons and complaint." In some jurisdictions, a process server will present the summons personally. In others the sheriff's deputy will pay a visit with the summons, and in others the notice will appear in the mail. Each jurisdiction has different civil procedure rules regarding proper service of notice. See Served Summons and Complaint to learn more about this process.
In California, a creditor is required to file an Application for Earnings Withholding Order (form WG-001) and Writ of Execution (form EJ-130). A completed Writ of Execution will contain a stamp from the California court and a signature by a clerk of the court. An experienced human resources or payroll administrator will recognize an authentic Writ of Execution and will not be fooled by whatever document the payday lender will provide. (See the California Franchise Tax Board document Wage Garnishment / Earnings Withholding Order and Small Claims Forms: Collections (for Debtors).
If the judgment-creditor did not notify you as required under California law, you may be able to reverse the levy. However, you do not mention that the levy was a surprise, so I will assume you had notice of the impending legal action
Bills.com provides advice and assistance on foreclosure, including terms and links to types of foreclosures. There are other options to foreclosure such as a short sale. A short sale is a process in which the mortgage holder agrees to accept less than the balance owed on the mortgage at sale to prevent foreclosure. The lender would much rather see you sell the property than be forced to take the property through foreclosure, as foreclosure is a costly and time-consuming process.
I realize you did not ask specifically about the foreclosure you mentioned. I include the information here for completeness.
Given the circumstances you shared and I surmised in your message, I do not see a means for you to recoup the funds seized regarding the judgment for your Chase debt.
As I mentioned above, the judgment-creditor is required to give the debtor notice of an impending garnishment or levy. If you received no notice of this action and are fastidious in your opening and reading all of your mail, then I urge you to consult with a California attorney who has experience in consumer law. If you are lackadaisical about reading your mail, it is possible that the notice slipped past you without your notice.
Consider opening a new bank account at a different bank to, at least temporarily, prevent any further withdrawals. Speak with a licensed bankruptcy attorney in California (or your state) to understand your financial and legal options.
I hope this information helps you Find. Learn & Save.