Garnishment – How Did This Happen?

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.