Can A Lawyer Stop Wage Garnishment?
When a person faces financial hardship in light of wage garnishment, it is often important to hire a lawyer to stop the oppressive loss of income each paycheck that comes. In certain states, it is easier for a lawyer to initiate the stopping of garnishments than in others, and it is essential for the employee to seek the counsel of legal representation in these matters. Facing a garnishment is a fearful time until the debt is complete. However, when contacting the lawyer to try to either avoid the wage loss or to stop it, it is important to ensure he or she has all the information about the garnishment. The employee may need to contact his or her employer about the details. Others may look online through a free credit report. Some may have contact through postal mail that gives him or her important data about the agency and who to contact for the information. This provided to the lawyer could improve the chances of avoiding or preventing a garnishment from taking place or continuing. Before contacting the lawyer, the individual needs to know as much about the garnishment as possible. This could lead the individual to review documentation, checking the check details or communicating with the agency. The employee could also ask the employer or contact the payroll department about the garnishment situation. When the matter starts at the bank, the person may need to sit down and explain the matter with a financial institution official. The garnishment occurs through a court judgment, and the person may need to check public records or contact the local courthouse to understand who it is that is acquiring the income.
Once the individual has all the details about the potential garnishment, it is time to speak with different lawyers. The person needs the best match with a representative. If he or she finds a lawyer that understands the issue but does not connect with the client, he or she may need to discover another legal representative that is a closer match. By communicating with the legal professional, the client may learn what to do about the garnishment situation. Many may explain the bankruptcy options. Debt settlement is another option depending on the disposable income the individual has after the garnishment incurs the wage losses.
The Debt Settlement Options
If the person has little or no disposable income, he or she may need to declare a Chapter 7 bankruptcy. This process generally lasts up to five or six months with all debts either reduced or wiped out. The individual may need to hire a lawyer to start the process. If there is some income left after all other bill, the bankruptcy option is Chapter 13. This could take years, and once the process is complete, the person will have a new structure in payments and debts. If the person does have enough income to settle the matter, a lawyer may communicate the issue with the agency or company and attempt to decrease payments to a manageable level.
The Notice and Return of Wages
If the person is able to hire a lawyer that matches his or her situation, it is possible to seek either a settlement or bankruptcy option that will provide the best alternative or outcome to the garnishment circumstances. The individual should provide notice of the possible case of Chapter 7 or 13. The lawyer will stop the garnishment as soon as the option taken starts. While the person may need to pay legal fees, it is generally better to hire the lawyer than let the garnishment continue until the debt finishes. Any garnished wages within 90 days of a bankruptcy case may return to the employee after he or she initiates the Chapter 7 or 13. These funds are exempt from the garnishment process and may return as well as any other assets taken in the interim. The employee will need to let his or her lawyer know about the matter to ensure prompt return of the monies. However, other items may not remain exempt depending on the state and bankruptcy type the person pursues.
Negotiating a settlement with a garnishment is possible without a lawyer, but many individuals do not understand how to proceed, or any legal matters involved in the situation. Hiring a lawyer may improve the circumstances significantly and provide a better outcome with a creditor through some form of settlement. Wage garnishment allows a creditor to take a portion of your wages to pay debts that you owe. If you are facing a wage garnishment, or your wages are already being garnished, you might be wondering whether you should hire an attorney, challenge the wage garnishment on your own, do nothing, or take some other action. Whether you should hire an attorney or address the garnishment some other way depends on a number of factors.
Types of Wage Garnishments
Wages may be garnished to pay debts that have been reduced to judgment, or taken by administrative orders to pay certain debts such as child or spousal support, back taxes, or student loans.
• Garnishments to pay judgments: A creditor may garnish your wages to pay a judgment it obtains against you. The creditor must first file documents with the court, asking it to order your employer to pay a portion of your wages to the creditor to satisfy your debt.
• Administrative wage garnishments: In certain situations, a creditor may garnish your wages to pay debts without first obtaining a judgment. These are called administrative wage garnishments. In almost every case, the law mandates that child and spousal support be collected via wage garnishment, even if you agree to pay voluntarily. Other debts that can be collected through an administrative wage garnishment include student loans and back taxes.
Your Options When Facing a Wage Garnishment
If you are facing wage garnishment, you might wonder if there is anything you can do to stop it. Sometimes, the best course of action is to do nothing and let your wages be garnished until you have repaid the debt. But other times it might make sense to:
• challenge the garnishment (or the amount) on your own
• work out something with the creditor, or
• hire an attorney.
Below are some factors to consider when deciding what to do.
You don’t owe the debt. If you already paid the debt, or you did not owe the debt to begin with, you should consult with an attorney. At the time a garnishment has been filed, either a court or an administrative agency has determined that you are legally obligated to pay that debt. Because of this, proving that you don’t owe a debt once garnishment proceedings have begun can be very complicated. This is one instance where you will definitely need the help of an attorney. An attorney can assist you in gathering the evidence you need to prove that the debt is not owed, and making sure that all procedural requirements are met.
• Legal fees will exceed the amount of the debt: If it is likely that the attorney will charge more to represent you than the amount of the debt, it might not make sense to hire an attorney. Ask the attorney up front if the value of the services he or she can provide in your situation is greater than what you will have to pay. A trustworthy attorney will answer that question honestly.
• The creditor is taking too much: When you are notified that a garnishment has been filed, you will receive a packet of information from the court or the agency responsible for the administrative wage garnishment. The papers should include an explanation of how much can be taken from your paycheck each pay period. In the case of a garnishment to pay a judgment, federal law allows the creditor to take up to 25% of your wages or the amount that your income exceeds 30 times the federal minimum hourly wage, whichever is less. Some states allow a lesser amount.
• Other limits may apply to administrative wage garnishments: If you think the wrong amount is being taken, you should consult with an attorney. If, however, it will be too expensive to hire an attorney, you can challenge the garnishment amount on your own.
• You want to work out other payment arrangements with your creditor: In some cases, your creditor might be willing to work with you, especially if it believes you may file bankruptcy or that it will have some other problem garnishing your wages. Very often, you can avoid a levy or administrative wage garnishment by entering into a voluntary payment plan. In most cases, you can negotiate with the creditor yourself. If you are unable to do so, or don’t want to do it yourself, you should consult with an attorney.
• Your employer is threatening to fire you because of the garnishment: If your employer threatens to fire you because of the garnishment, you should consult with an attorney immediately. It is illegal for an employer to fire you just because your wages are being garnished.
• The creditor is trying to get around the wage exemption by garnishing a bank account: The judgment creditor is not permitted to take more of your wages than allowed by law just because those wages are deposited into a checking account. The forms you receive from the court will have a place for you to indicate which portion of your bank account consists of wages. If you are having difficulty with the paperwork, you should contact an attorney for help.
• Bankruptcy will stop most wage garnishments: If you are struggling with debt, you might want to consult with an attorney to find out whether bankruptcy can help you get back on your feet. Filing a bankruptcy petition will stop most garnishments immediately.
How to Object to a Wage Garnishment
If a creditor is attempting to garnish your wages, you may be able to challenge the garnishment by raising an objection. The procedures you need to follow to object to a wage garnishment depend on the type of debt that the creditor is trying to collect from you, as well as the laws of your state.
Wage Garnishments by Judgment Creditors
If you owe a creditor on a debt like a loan, hospital bill, or credit card, it cannot automatically garnish your wages. Instead, it must first sue you and get a judgment against you from a court. Once that happens, then the judgment creditor must file papers with the court to start the garnishment process. Usually, you have the right to written notice and a hearing before your employer starts holding back some of your wages to pay your judgment creditor. Typically, that notice is in the form of a Notice of Garnishment of Personal Earnings or similar document that the court sends you. Once you have received this notice that your wages are about to be garnished, you have to act quickly. You have a limited amount of time, which can range from 30 days to just five business days, to object before the garnishments begin.
Filing a Written Objection to the Wage Garnishment
The process for objecting to a garnishment usually begins with preparing and filing paperwork. The garnishment documents that you received from the court should contain instructions on what you must do to object to the garnishment. Those instructions should include:
• the deadline for filing the objection
• whether that objection must be in writing
• whether you must use a court-provided form or draft your own written objection
• the type of information your written objection should contain
• where you should file the objection
• whether you must also serve a copy of your objection on the judgment creditor and other parties, and
• the date, time and location of any hearing that the court will hold to consider your objection.
If the garnishment papers you received do not contain this information, immediately contact the clerk of the court that issued the garnishment documents to find out this information. Usually, a form will be included with the garnishment notice that you can use to write your objection and request a hearing. If it is not, you should ask for one from the clerk of the court that sent you the garnishment notice. If the court does not have a form, you should write out your objection to the best that you are able and file it on time.
Contents of the Written Objection
At a minimum, your written objection to the garnishment should include the following information:
• the case number and case caption
• the date of your objection
• your name and current contact information
• the reasons (or “grounds”) for your objection, and
• your signature.
Stating the Grounds for the Objection
If you believe that your earnings are exempt in full or in part under federal or state law, you should state that fact within your written objection. Explain the nature of the exemptions and provide calculations. Many states have a form specifically designed for this purpose. You may have additional reasons to oppose the garnishment. For example, you have already paid the judgment creditor or you received a bankruptcy discharge. In that case, you should describe the basis for that objection. If you do not state your reasons for objecting to the garnishment and timely file that written objection with the right court, you may have waived your right to fight the garnishment later. Therefore, it is extremely important that you file a written objection as soon as possible.
The Garnishment Hearing
If the court provides for a garnishment hearing, you must attend that hearing to protect your wages. The hearing date and time is either provided automatically with the initial garnishment notice, or given to you later, after you have filed your objection. If the court has not given you a hearing date even though you timely filed an objection, you should immediately contact the clerk of that court to find out the status of your objection and hearing dates, if any. At the hearing, you are not allowed to argue about the validity of the judgment itself. Instead, the hearing is limited to your claim of exemption or other reason why you believe the garnishment is improper. You should bring copies of documents that support your objection, such as recent paystubs if you are claiming an income-based exemption. If your objection is based strictly on state or federal exemptions, the judgment creditor’s attorney might not even appear unless it believes that your income is higher than what you claim. In that case, you just need to make your case with the judge or magistrate, who will interpret your claim of exemption in accordance with the available state and/or federal exemptions. If the judge or magistrate accepts (or “sustains”) your objection, then the garnishment may be modified downward or terminated altogether. If your objection does not hold sway with the court, then it will overrule it and allow the garnishment to proceed as it was filed.
Special Garnishments: Taxes and Student Loans
Some creditors do not need to get a judgment from a court before they can legally garnish your wages. Those creditors include the IRS (and state and local tax creditors) and your student loan lender. Nonetheless, you still have some rights. You will have to follow somewhat different procedures if you wish to object to the wage garnishment, depending on who is trying to garnish you. At a minimum, you will have to submit a written objection and claim any exemptions you may have available under separate federal or state laws, usually within a short period of time after receiving notice of the garnishment.
Wage Garnishments for Taxes
If the IRS intends to garnish your wages, you should receive written notice of its intent to levy your wages. You will be given an opportunity to claim exemptions depending on your household size and income, on a form provided by the IRS. These exemptions are different than exemptions you would be entitled to take under other state and federal exemption laws. State and local taxing authorities may be able to similarly go after your wages, subject to caps on the amount they can take from your wages. You should research the laws of your state to find out more information.
Wage Garnishment Lawyer
When you need legal help to stop a wage garnishment, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506