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Protect funds from garnishment when disabled

By

To Her Credit
To Her Credit, Sally Herigstad
Sally Herigstad is a certified public accountant and the author of "Help! I Can't Pay My Bills: Surviving a Financial Crisis" (St. Martin's Press, 2006). She writes "To Her Credit," a weekly reader Q&A column about issues involving women, credit and debt, for CreditCards.com, and also wrote for MSN Money, Interest.com and Bankrate.com, and has guested on Martha Stewart Radio and other programs. See her website SallyHerigstad.com for more personal finance tips and free budgeting worksheets.
Ask Sally a question, or read her previous answers in the To Her Credit archive
Question for the CreditCards.com expert

Dear To Her Credit,
I am on disability, with no other money. Capital One has sent me a motion for turnover of my check in my bank.

Last month was the first time they just went to my bank to take my disability money. The bank notified me and sent a letter saying I was exempt and the funds were protected. But the credit card company wormed in again and somehow it slipped through and my money was put on hold. I discovered I had a zero balance. I called the bank, they gave me back my funds and put a note on the account as "protected."

Now, I have just received registered mail talking about an execution of goods and chattels, and I have 10 days to object to the entry of the order sought, in which event the clerk shall set the motion down for a hearing and notify me by mail.

They want me to only answer by two notarized letters, one to them and I guess the clerk. This is a bill from 2003, and the amount now owed is up to $1,771.28.

I lost everything when I became disabled. I am renting a room and have no car, nothing. I am so embarrassed that my bank is involved. I have always been independent, but I did not plan on getting this disease. I just went through my 10th eye operation, I've been through radiation, my body is just going. My nerves are at the end now with this. I only get $830 a month in disability payments. Could you please advise me? I can't afford a lawyer.   -- Barbara

Answer for the CreditCards.com expert

Dear Barbara,
Your credit card issuer doesn't stand a chance on this one. Cases like yours are the reason we have laws protecting debtors in this country. To have gone through what you have -- I can't imagine 10 eye operations -- the last thing you need is a creditor hounding you. Less than $2,000 is a minor amount as credit card debts go, but with your low income and no assets, they'll never collect.

When people have no assets or income that can be taken by a court judgment, they are what is called judgment proof. The credit card company is trying to attach your assets, but there's nothing to attach. You could be judgment proof even if you had a few assets. State laws vary, but creditors cannot take every last dime a person owns.

Another strike against your credit card company is that the debt is nine years old. The statute of limitations in New Jersey is only six years. If the last activity on the account was in 2003, it's too late for them to file a lawsuit in your case. (See our state-by-state statute of limitations list for credit card debt. It contains links to laws in each state.)

That doesn't mean you can just ignore the debt and the legal proceedings. It's very important to respond. You should reply with two notarized letters as instructed. I suggest looking into a legal assistance program for low-income individuals in your state. They can help you write the letter and take that burden off your shoulders.

Resolving this debt is in the best interests of all parties involved. Think of it this way: You'll be doing the credit card company a favor by letting it know where things stand, so it can direct its energies someplace it is more likely to be successful!

I hope you can put this debt behind you and concentrate your health. Take care, and I hope you feel much better soon.

See related: Disabled and in debt: What to do?, Disabled and in debt: 3 choices

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Published: June 1, 2012


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