When your wages are being garnished, this means a portion of your income is automatically attached so that financial obligations will be paid. Generally, this is the last resort by creditors to get their promised payment. Garnishment is a legal process, but nonetheless, people can be surprised by the news that their wages are being confiscated. It’s true that debt collectors may and often do lie about sending proper notices, process servers may not attempt to serve beyond the last known address whether the defendant is living there or not. On top of all this, when the defendant does not appear in court, the judge will levy a default judgment in the plaintiff’s favor.
Often when the process has gone as far as money coming out of your check, you need an experienced attorney to not only handle your garnishment woes, but an overall debt problem.
The amount of your income that can be attached in a garnishment action is limited by federal law. Either of two scenarios is possible when your wages are being attached.
Keep in mind that garnishments for spousal or child support, unpaid taxes or student loan debt are subject to different standards and can attach between 15% and 50% of disposable income. It is some small relief that garnishments are first-come-first-serve – only one creditor can attach your earnings at a time. Certain entities such as the IRS do not need a court order in order to attach your wages.
Florida has some unique protections when it comes to personal debt. These are called exemptions, meaning that they are exempt from being attached to repay your creditors. The home you live in is protected from all creditors except the bank that holds the mortgage or people who have a lien against your property. If you can’t claim a homestead exemption, you have the right to exempt personal property of up to $4,000. You may also claim your vehicle as an exemption of up to $1,000. If you’re married, and the judgment is solely against you, your personal property owned with your spouse cannot be divided in order to pay creditors. These and other exemptions are your rights by law and can be better explained to you by a licensed attorney.
Your wages can’t be garnished over a single missed payment. Missing a payment may initiate communications from financial entity to whom you owe money. This entity can be a credit card company, auto loan holder, or student loan servicer. Government entities can also attach your earnings for past-due child support, alimony, fines and penalties, and (of course) owed taxes. They will attempt to reach you by mail, by phone, even by email or text. The longer you owe, and hence the attempts to communicate with you. Many private entities including banks and credit card companies will ultimately end up selling your debt to a debt collection service and writing it off.
Just because they have sold your debt does not mean that collection actions will cease. If the debt collector is unable to contact you, they may resort to filing a case in court. By law, you must be served with papers and respond within a limited time. However, as we well know, some debt collection agencies are less than rigorous in trying to properly serve the order to appear. If you ignore these summonses or have not received them, the judge will not be able to hear your side of the case. Not showing up is the easiest way to have an order garnishment issued.
Just because you don’t actually owe the debt for one reason or another does not mean that they can’t win. You must appear in court in order to argue your side of the case. The debt can be time-barred, may have been paid and sold by accident, or they may not have the documentation to prove that you actually owe them the debt. Once the order is issued, your employer will receive a notice to garnish a percentage of your pay and must comply by law. You may be able to argue financial hardship, negotiate a settlement with the debt collector, or in most cases, you may stop wage garnishment immediately by declaring bankruptcy.
“Bankruptcy? How did we get to bankruptcy?! I was googling about how to stop wage garnishment immediately!”
Bankruptcy is constitutionally protected right of the debtor to file for protection from their creditors in the federal courts. This can take the form of a chapter 7 liquidation bankruptcy or a reorganization chapter 13 bankruptcy. In both cases, the automatic stay goes into effect on filing and stops all collection actions at once. This is the surest way to stop wage garnishment immediately and begin to get a handle on your finances.
At first glance, stopping a garnishment using the automatic stay of bankruptcy filing looks like the nuclear option. It is not for everyone, and there are certain tests and standards that filing for bankruptcy must meet. For instance, there is a means test for filing a chapter 7 bankruptcy, and a chapter 13 bankruptcy is a protracted legal endeavor that settles debts under the oversight of the US Trustee. However, for those under a massive burden of debt bankruptcy is often the better option than to continue into a spiral that leaves one impoverished and hopeless under a mountain of debt that must be paid every month.
Trying to navigate a wage garnishment alone can be a very scary ride. You need an experienced attorney on your side who understands the garnishment process, debt, and bankruptcy. Van Horn Law Group is there when you need us. Our offices in West Palm Beach and Fort Lauderdale are open seven days a week, and your first consultation is free. Make an appointment and let us look over your financial situation and offer our best legal advice. Bankruptcy can stop wage garnishment immediately, but there may be other paths forward for you. Call us and we’ll help you figure it out, and then swing into action and get it done.
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