How Can I stop a Wage Garnishment?

Posted by Kevin Ryan | Jul 04, 2016 | 0 Comments

What is a Wage Garnishment?

A wage garnishment is a separate post-judgment proceeding filed by a creditor. “Post-judgment” refers to a situation where the creditor has already filed a lawsuit against the debtor and obtained a court judgment either after a bench or jury trial, or after a hearing concerning the debtor's default ( or failure to appear and defend the lawsuit and/or failure to file an Answer in the case.

What Can a Creditor do After Getting a Court Judgment?

Once a creditor has obtained a judgment, life can get very difficult for the Debtor. The creditor is permitted to check the debtor's credit report and discover all kinds of otherwise personal information to help collect their debt.  This includes employment information, bank information, residence information, etc.   The creditor can use data collected from the debtor while the account was in active status, such as copies of personal or business checks that have routing and account number information.  The creditor does not have to file a separate proceeding to legally attach, or “seize” the debtor's bank account funds.

What Rights do I Have Under a Wage Garnishment? 

Wage garnishments require the creditor to comply with both state and federal laws prior to their taking place.   The Debtor IS entitled to notice of a wage garnishment proceeding, while not being entitled to any pre-notice of a bank account attachment.   The creditor cannot take more than 25% of the debtor's paycheck under federal law, and most states have additional protections which require the creditors to line up  one at a time to garnish the debtor's payroll check.    Additionally, most states require the creditor to serve the debtor with a worksheet to determine what deductions the debtor is entitled to while working down to a net figure of earnings that are subject to the wage garnishment.

What Can a Judgment Creditor Take from Me? 

A creditor is not permitted to garnish, levy upon, or seize any funds owned by the debtor which are listed as exempt under state or federal law. This can include public assistance, child support, veteran's benefits, certain pension funds, social security, etc.   The debtor in a wage garnishment proceeding can ask the Court to schedule a hearing so that the the debtor can present evidence that certain funds are exempt, and not subject to garnishment ( this also applies where the creditor has seized bank account funds; any exempt funds must be returned to the debtor.

What Defenses Do I Have to a Garnishment ? 

There are limited defenses to a wage garnishment.  Once the creditor obtains the judgment the creditor is free to utilize all options available under federal and state law to collect the debt.    Fortunately, this is not the end of the line for the debtor.  The United States bankruptcy code provides that upon the filing of a bankruptcy petition by an individual, the Court issues what is known as an “automatic stay” order under 11 U.S. Code Section 362.  The automatic stay is perhaps the most powerful legal weapon in the debtor's toolkit in holding off creditors.

Does a Bankruptcy Filing Stop a Wage Garnishment  and Bank Attachment ? 

Once the automatic stay order is issued by the U.S. Bankruptcy Court, any actions taken by creditors to contact the debtor or to collect directly on the claim without permission of the bankruptcy court can be determined to be contempt of the automatic stay order.  When a creditor is found to be in contempt of the automatic stay order the bankruptcy court can order the creditor to pay damages to the debtor, the debtor's actual costs, and attorney fees incurred to enforce the order.

If you have questions about wage garnishments, the automatic stay, or the bankruptcy process in general, please do not hesitate to contact Bankruptcy Law Attorney Kevin M. Ryan at 251-431-6012.

About the Author

Kevin Ryan

"I'll never be the kind of attorney your creditors want me to be. I'll always be the kind of attorney you NEED me to be. Call me. I'll BE there for you. And I'll make them go away."  -Kevin Ryan, Attorney at Law Kevin Ryan is a graduate of the College of Wooster and the Cleveland Marshall College of Law. He is admitted to practice before all Alabama State Courts, the United States District Court for the Southern District of Alabama, and the United States Bankruptcy Court for the Southern District of Alabama. The United States Bankruptcy Court is a part of the United States District Court. Since 1998, Mr. Ryan has represented thousands of individual clients in bankruptcy, criminal, divorce, probate, personal injury, and real estate matters.  Attorney Ryan is also a licensed real estate agent in Alabama.  He handles  Bank-owned properties, short sales, and conventional sales in addition to conventional real estate listings.   This wide range of experience enables Attorney Ryan to take a wider look at your legal matter. It is important to consult with an attorney who can see from experience how other legal issues may affect your situation, and advise you accordingly. Personal Info Kevin Ryan is a member of First Baptist Church in Silverhill, Alabama. He resides in Silverhill with his wife Jessica and their three children. Committed to helping our Clients achieve a fresh financial start Our practice focuses primarily on consumer bankruptcy matters under Chapter 7 and Chapter 13 of the United States Bankruptcy Code.  Our law practice also includes matters where bankruptcy litigation, appellate work, or involvement in civil lawsuits is needed by a client.     No representation is made that the quality of any of these legal services is of higher quality than another attorney or law firm.   The United States Bankruptcy Code requires the following notice:  We are a Debt Relief Agency, which means we help people get legal relief from their Debts through the bankruptcy process. Interested in learning more about our bankruptcy attorney near Mobile, Alabama? Contact Us for help with chapter 7 bankruptcy or chapter 13 bankruptcy in Mobile, Baldwin and Washington counties. Education Juris Doctor, Cleveland Marshall College of Law, 1997 Employed full time as a paralegal while attending law school in the evenings. B.A., The College of Wooster, 1994 NCAA Div.III All Conference (N.C.A.C.) Football Team : Defense 1993; Most Inspirational Senior Award 1993; Co-captain 1993; Letterman 1991-1993; Phi Sigma Alapha Fraternity 1991-1994; Athletic Director Jurisdictions Admitted to Practice Alabama

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I'll BE there for you.

I'll never be the kind of attorney your creditors want me to be. I'll always be the kind of attorney you NEED me to be. Call me. I'll BE there for you. - Kevin Ryan, Attorney at Law

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