Know Your Rights

Threats of Wage Garnishment

We hear a constant flow of complaints about debt collectors threatening wage garnishment.  But are those threats real?  There are a few rare instances when a threat of a wage garnishment is very real and the consumer should have concern.  However, the overwhelming majority of those threats are improper threats that violate the Fair Debt Collection Practices Act.   Here are things to look for when confronted with a threat of garnishment:

First, was there or is there a lawsuit filed against you:  With the exception of a federally funded student loan and an agreed upon wage assignment that was not later revoked, no company can garnish your wages without first having a judgment against you.   Before there can be any garnishment, there must first be a judgment.  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. 

Second, is the company making the threat the owner of the debt:  Again, the only way to a wage garnishment is by suing and gaining a judgment.  If the person or company making the threat does not own the debt, they have no right to sue you.  They therefore have no say whatsoever on whether you will endure a wage garnishment.  Therefore, a threat from a debt collector that is merely assigned the debt to collect would be violating the FDCPA by making such a threat. 

Third, is the one making the threat an attorney licensed in your state:   Typically, when attorneys get involved in the collection of debts, the price of poker has gone up.  There is a more real concern that the legal system is going to become involved because, after all, that's what lawyers do.   However, it is very common in the debt collection industry for lawyers and law firms to use their status and stretch outside the boundaries of where they really practice law.  Many law firms send letters and attempt to collect debts from people in states where they are not even licensed to practice.  The idea is to get the debtor scared and intimidated.  However, if the lawyer is not licensed to practice law in the state where the collection is taking place, then that lawyer is nothing more than another debt collector.  That lawyer has no say in whether a lawsuit can or will be filed.  Even though they may act as an advisor to the owner of the debt, a lawyer that actually signs and files the lawsuit is the one who must make an independent determination of the veracity and viability of a lawsuit. 

If a debt collector makes a threat to take any action that he or she cannot lawfully take or does not intend on taking, such as threating to garnish ones wages when they have no right to, is a violation of the Fair Debt Collection Practices Act.  SmithMarco, P.C., has over 30 years of combined experience practicing law protecting the rights of consumers around the country.  If you feel that you're rights have been violated, please contact us for a free case review.


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