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Garnishment – How Did This Happen?

On Behalf of | Jan 29, 2013 | Consumer Protection

It is a familiar story – a panicked consumer calls.  His or her paycheck was garnished.  They had no clue this was going on.  He or she did not receive notice that their wages were going to be garnished or maybe that there was even a case pending against them.   How can they get this garnishment stopped, and what other rights do they have?

What is a wage garnishment?
Wage garnishment is the most common type of garnishment. It is the process of deducting money from an employee’s wages.    No company or business can garnish wages without first having a judgment.  Each state has different rules on wage garnishment.  To see the rules in your state, click here.

What is a judgment?
A judgment is a finding as a matter of law that a certain debt is owed.  There is no more legal challenge to the debt. However, before there can be a judgment, a lawsuit must first be filed and properly served.  Even after a lawsuit is filed, the consumer has every right to defend the lawsuit.  With the proper help and preparation, a judgment can be avoided.

How can I stop it?
Once that judgment is entered, however, the collector has a right to seek out assets to pay the judgment as long as it remains unpaid.  Therefore, until it is paid, the garnishment will continue.  In some states, there are laws that allow a consumer to make a motion for installment payments that, if reasonable, the court will order that the creditor accept.  As long as payments are made, the collector or creditor cannot garnish.

What if I need every penny of my income for survival?
Contact the clerk of the court and ask about requesting a hearing for hardship due to wage garnishment.  Each state and county have different rules and procedures.  There is no guarantee, but it might be worth a few phone calls to see what you will need to do to get a hearing in front of a judge.  If you can obtain a hearing, attend your court date prepared with proof of your income and expenses.

Do I have a right be notified before my wages are garnished?
There is no rule requiring notification before garnishment. Once the judgment is filed, the creditor or collector has a right to seek out assets as long as the judgment remains unpaid. There is, however, a rule that requires service of the lawsuit upon the consumer in the first place.

Is my income exempt from wage garnishment?
Unemployment, social security, and disability payments are exempt from garnishment.  If the creditor or debt collector takes these funds, you need to prove to them that the funds are exempt.  Provide the collector with written proof regarding the original of the assets.  If the funds are still not returned, then your rights under the Fair Debt Collection Practices Act might have been violated.  For a free consultation, contact SmithMarco.

Whoa – hold on.  I don’t remember being sued for this debt.  I am not even sure it is mine.  Now what?
As I said earlier, for a judgment to be entered, there first be a lawsuit filed and you should have been served a summons.  This notifies you of the lawsuit and usually includes a copy of the complaint (why you are being sued).   This gives you a chance to defend yourself.

I was never notified of the lawsuit.  I never received a summons.  This is unfair.  What can I do?
You need to contact the court where the lawsuit was filed and obtain the court file. It is a public record so you are entitled to review it.  Go through it and make copies of the “Complaint” which is the lawsuit filed against you, the “Summons” and any document indicating it is a “Proof of Service” or “Affidavit of Service.”  This is the document upon which they claim they notified you of the lawsuit that was filed and provided you the opportunity to go to court to defend yourself.

If after reviewing those documents, it appears that the service was faulty (i.e. not served at your place of residence at the time) then please contact us for assistance.  You may be able to help get the judgment vacated and provide you the opportunity to defend yourself and resolve this debt in a more reasonable manner than having your wages taken from you.

I feel stuck with this garnishment.  Any tips or advice?

  • Keep a record of the amounts paid toward the judgment.
  • The judgment adds interest.  This means the longer it takes to pay it off, the more it will cost you.  If you have the opportunity to pay off the judgment, pay it off.
  • When the judgment is paid off, be sure to obtain a letter from the collector that the judgment has been satisfied.  Keep that letter in your files.
  • If you have more than one judgment and other debts, you might want to consider filing Bankruptcy.  Bankruptcy will allow you to eliminate most or all of your debts.  It will stop garnishments.  Contact us today to see if this a viable option for your situation.

When you’re being pursued by debt collectors, you have rights,  and we’re here to help.  SmithMarco, P.C. has been protecting consumer rights since 2005. If you feel that you’re rights have been violated, please contact us for a free case review.