In Bankruptcy Information, Bankruptcy Questions, Uncategorized

If a person isn’t judgment proof, she might end up being garnished to collect a judgment. What does that mean and how does it work?

What is garnishment?
A garnishment is a court order that allows a judgment creditor to take property that belongs to a debtor that is in the hands of a third party. Usually this is in the form of taking wages from the debtor’s employer before the employer pays them. It can also be in the form of taking a bank account, tax refund or inheritance.

How does a creditor get a garnishment?
First, the creditor has to get a judgment against the debtor. This means the creditor has served the debtor with a summons and complaint and either the debtor didn’t answer the complaint, resulting in a default judgment; or after a trial or on a motion for summary judgment, the creditor was granted a judgment. Once a judgment is entered, the creditor has tools available to help him collect the judgment from the debtor. The creditor will often bring the debtor to court on an Order in Supplemental Proceedings, or supp order, to find out what the debtor owns. At the supp order, the creditor can learn where the debtor works. If the creditor already knows where the debtor works, he can skip the supp order and go straight to a garnishment. Either way, the creditor gets a writ of garnishment from the court and has it served on the debtor’s employer, along with garnishee interrogatories, which are written questions directed to the employer. The employer has a certain number of days to answer the interrogatories to the creditor. The employer is also required to mail a copy of the writ to the debtor together with forms that the debtor can fill out and file with the court to contest the garnishment. The debtor a limited time in which to complete the forms, file them with the court and mail a copy back to the employer. During this time, the employer holds any money owed to the debtor that is subject to garnishment. If the debtor doesn’t file the objection with the court, the employer turns the money over to the creditor. If the debtor does object the objection is heard by the judge in the case.

What objections can a debtor make?
There are very few objections a person can make to a writ of garnishment. The fact that a writ has been issued means the creditor already has a judgment, so it’s too late to contest whether the person owes the money, or the amount owed. The only real objections that can be raised are that the money being garnished isn’t the debtor’s (unlikely if it’s a wage garnishment) or the money is exempt from garnishment. Money from social security, pensions, retirement accounts, unemployment compensation and a few other sources is exempt from garnishment. But if it’s an employer who is being garnished (the garnishee), wages are not exempt. It isn’t a defense that this doesn’t leave you with enough money to pay your bills.

Will bankruptcy stop garnishment?
Yes! The automatic stay of the bankruptcy code stops all garnishments and other attempts to collect debts. Before you decide to file bankruptcy, however, talk to a qualified bankruptcy attorney about the consequences of filing and which chapter is best for you. If you need help assessing your situation or you need to file bankruptcy, contact us here, or call or text (801) 413-3708, or email steve@schamberslaw.com.

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