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.