Can I Negotiate A Garnishment?
Wage garnishment is a legal procedure in which a portion of a debtor’s earnings are withheld by his or her employer in order to repay creditors. Garnishment is a fairly severe consequence and is usually used only when an employee is seriously behind on his or her debts. Debts that may be repaid through wage garnishment include:
• back taxes
• Child Support
• student loans
• personal loans
• judgments from court cases.
How Wage Garnishment Work
No matter how far behind a debtor is on his or her debt, the creditor, the person or organization to which the money is owed must schedule a hearing with a court. In most jurisdictions, the debtor has to be notified of the hearing’s time, date, and place. The creditor must then prove that the debtor owes money and that the debtor has failed to make required payment(s). If the court is convinced, it will issue an order requiring the debtor’s employer to withhold a certain amount of his or her paycheck, along with a letter and specific instructions for the employer. The employer usually has to notify the debtor in writing that wage garnishment is about to start before sending payments directly to the creditor in question. The wage garnishment then typically continues until the debts are paid off.
Wage Garnishment Protections for Employees
There are a number of protections in place for employees whose wages are garnished. The federal government and many states have policies in place that prevent debtors from becoming impoverished while repaying their debts. Two of the most important protections are:
• Only a certain amount of work income may be garnished. Under the Consumer Credit Protection Act (CCPA), a garnishment sought in federal court may not exceed 25 percent of the debtor’s disposable earnings each week. However, if the garnishment is for back payment of child support it could be as high as 60 percent of disposable income. Alternatively, the court order could garnish the amount by which the debtor’s disposable earnings for the week exceed thirty times the federal minimum wage whichever is lower. For the purposes of this law, “disposable income” means all of your income, even if it’s from multiple jobs, with the required tax deductions subtracted. Other payments that are necessary to your daily life, such as rent, food, and health insurance, aren’t included in this calculation. If you have more than one debt to repay, but not enough income to cover them all at the same time, the later creditors must wait until your earlier debts have been repaid.
• Employees cannot be fired because their wages are garnished. Federal law protects you from being fired simply because your wages are being garnished for a single debt. However, if your wages are being garnished for two or more debts, your employer can fire you if it decides to do so.
How to Avoid a Wage Garnishment Order
The best way to avoid a wage garnishment order is to keep up with your debt payments. Ideally, you should pay your debts on time and in full, but this is not always possible. If you know you may have trouble paying all your bills on time, you should contact your creditors. Most student loan administrators have a variety of ways for you to avoid default. Child support, on the other hand, may be modified by court order if you can show that you can no longer afford the payments. In addition, the IRS and some state tax departments can help you schedule structured payments to repay your back taxes. Finally, some banks and other private debts may be able to work out more affordable payment arrangements. If you‘re unable to work out an alternative arrangement and you see the notice for the wage garnishment hearing in the mail, don’t ignore it! Attend the hearing with an attorney if possible. Bring along any documentation you may have about the debt, including proof of attempted payments and attempts to negotiate a different payment schedule, as well as proof of your income and expenses. If you were unable to attend the garnishment hearing and the garnishment takes effect, you should ask your employer for a copy of the court order. You may be able to request that the court review the garnishment order.
Stopping Wage Garnishment in Utah
Accessing the assistance of a wage garnishment lawyer is the best method of insuring that the most effective steps are taken to stop wage garnishment in the Utah. Stopping a court ordered writ of wage garnishment in Utah begins with a review the source of the debt that gave rise to the writ. Wage garnishment may be ordered to recover child support, spousal support, civil judgment debt, State or federal tax debt, student loan debt and criminal penalty debt arising from conviction of a crime. There are three basic options that might effectively stop the wage garnishment and those are, appeal the writ, file for bankruptcy and negotiate a payoff.
Appeal of the Writ Claiming Exemptions
In Utah $ 142.50 of the wage-earner’s net weekly earnings is exempt from garnishment by a creditor. If the writ of garnishment allows a creditor to take any portion of the statutorily exempted wages then the writ may be unlawful and it should be appealed by claiming the statutory exemption.
File for Bankruptcy in State or Federal Court
Filing a personal bankruptcy under Chapter 7 or Chapter 13 may work to stop the garnishment of wages depending on the type of debt that invoked the garnishment. Some types of debt such as garnishments to access funds for child support or spousal support may not be affected by filing for bankruptcy. The State of Utah does not allow the application of the federal bankruptcy code exemptions regarding a wage garnishment in bankruptcy but instead uses federal non-bankruptcy wage garnishment exemptions. Use of the federal non-bankruptcy exemptions in a State bankruptcy filing is an option in most States but is required in Utah. Seventy five percent of earned but unpaid debtor wages is exempt from creditors and that is the same wage amount exempted by the federal bankruptcy code.
Negotiate a Debt Pay Off
Negotiating a debt pay down by effecting an agreement between the creditor and the debtor wage earner is a great option to resolve a wage garnishment problem. A lawyer may be able to mediate an agreement that would stop the wage garnishment and allow the debtor to pay down the debt over time by installment payments or to settle the debt out entirely for a reduced amount.
Utah Wage Garnishment Law
Utah wage garnishment laws limit the amount that creditors can take from your paycheck. In Utah, a creditor can use a writ of garnishment to take a portion of your income to repay your debt. Utah law protects a portion of your income by limiting the amount that a creditor can garnish. The Utah wage garnishment laws protect the same amount as the federal wage garnishment laws. For the most part, creditors with judgments can take only 25% of your wages. However, for a few types of debts, creditors can take more. Most creditors must first obtain a court judgment stating that you owe them money. Once a creditor has such a judgment, it is called a “judgment creditor” and it has the right to execute against (take) certain personal property or wages to repay your debt. For example, only a judgment creditor can garnish your wages for a credit card debt or doctor’s bill.
There are some exceptions to this rule. Your wages can be garnished without a court judgment for:
• unpaid income taxes
• court ordered child support
• child support arrears, and
• defaulted student loans.
Limits on Wage Garnishment in Utah
There are limits to how much money can be garnished from your paycheck. The purpose of the Utah wage garnishment law is to protect enough of your income to allow you to pay for your living expenses. Federal law places limits on wage garnishment amounts. While states are free to impose stricter limits, Utah has not done so. The Utah and federal wage garnishment laws protect the same amount of your income.
Special Limits for Child Support, Student Loans, and Unpaid Taxes
If you owe child support, student loans, or taxes, the government or creditor can garnish your wages without getting a court judgment. The amount that can be garnished is different too.
Since 1988, all court orders for child support include an automatic income withholding order. The other parent can also get a wage garnishment order from the court if you get behind in child support payments. Federal law limits what can be taken from your paycheck for this type of wage garnishment. Up to 50% of your disposable earnings may be garnished to pay child support if you are currently supporting a spouse or a child who isn’t the subject of the order. If you aren’t supporting a spouse or child, up to 60% of your earnings may be taken. An additional five percent may be garnished for support payments over 12 weeks in arrears. Utah law allows up to 50% of your disposable earnings to be garnished for child support
Student Loans in Default
If you are in default on a federal student loan, the U.S. Department of Education or any entity collecting for this agency can garnish your wages without first getting a court judgment this is called an administrative garnishment. The most that the Department of Education can garnish is 15% of your disposable income, but not more than 30 times the minimum wage.
The federal government can garnish your wages if you owe back taxes, even without a court judgment. The amount it can garnish depends on how many dependents you have and your deduction rate. States and local governments may also be able to garnish your wages to collect unpaid state and local taxes.
Total Amount of Garnishment
If you have more than one garnishment, the total amount that can be garnished is limited to 25%. For example, if the federal government is garnishing 15% of your income to repay defaulted student loans and your employer receives a second wage garnishment order, the employer can only take another 10% of your income to send to the second creditor.
Restrictions on Job Termination Due to Wage Garnishments
Complying with wage garnishment orders can be a hassle for your employer; some might be inclined to terminate your employment rather than comply with the order. State and federal law provides some protection for you in this situation. According to federal law, your employer cannot discharge you if you have one wage garnishment. However, federal law won’t protect you if you have more than one wage garnishment order.
What Creditors Can And Can’t Do To Recover Their Money
Debt collection used to be much simpler for creditors than it is today. Historically, failure to pay debt was punishable by imprisonment, the stocks, and in some areas even death. Debtor’s prisons continued to exist until some decades after the American revolution. Some creditors, in their fury over non-payment, wish these punishments were still legal, especially if the debtor is particularly dishonest or obnoxious. But the bottom line is, the laws today are more humane for debtors, so creditors need to be more educated in order to understand their rights. When a debtor fails to pay, the ultimate goal of a creditor is to get money (or property that can be sold for money) from the Debtor. There are many possible strategies to accomplish this, but at the root of all these strategies is understanding what the law will and will not do to allow a creditor to get the debtor’s property by force.
Secured Versus Unsecured Creditors
There are two major types of debts — secured and unsecured. A secured debt is one where the creditor is holding property as collateral (either physically or through legal documents). All other debts are unsecured. The question of whether a creditor is secured or unsecured is important to determine its rights out of court, in court, and in bankruptcy. In many instances, it is worth the effort for an unsecured creditor to negotiate with a debtor to become a secured creditor by getting some collateral from the debtor before a lawsuit or during a lawsuit. Without going to court, there is very little that unsecured creditors can do other than continually ask the debtor to pay and threaten to go to court (this is sometimes effective). The law limits the creditors in how much they can harass, annoy, and embarrass the debtor, so it is often wise for a creditor to get legal advice in all of their collection efforts outside of court. Secured creditors have a few more options. If the secured property is personal property (anything other than houses or lands), the creditor can repossess the collateral and sell it, as long as this is done without “breach of the peace,” and the sale is done in the manner prescribed by law. If the secured property is real property (houses or lands), the creditor can record their documents, clouding title. There are also some instances in which a secured creditor with the right documents can sell real property without court action. After suing the debtor, there are two phases of the lawsuit before judgment and after judgment. The difference between these two phases is important, because in a contested lawsuit, it may take months or in some cases years to get a judgment. There is also a difference between what unsecured creditors can do and what secured creditors can do in each phase. Unsecured creditors usually have to get a judgment before being able to force the debtor to give up any property. There are some special instances such as where the debtor is actively hiding or destroying property, or the debtor is holding some property that clearly belongs to the creditor where an unsecured creditor can get an order from the court allowing it to take property early, but it is usually very difficult if possible to get such an order. Secured creditors can sometimes force the debtor to give up the collateral before judgment. This is significant because personal property collateral can normally be taken outside of court only if it can be done without “breach of the peace.” A court order can sometimes give a secured creditor rights that go beyond what they could do outside of court, even before judgment. After judgment, the creditor has the right to the assistance of the court in taking and selling the Debtor’s non-exempt property. The most common are supplemental proceedings, writs of garnishment, and writs of execution
Supplemental proceedings are proceedings to force the debtor to divulge the nature and location of his or her property. This is most frequently done by ordering the debtor to appear at a hearing. Unless the creditor knows enough about the debtor’s property, the creditor normally uses supplemental proceedings to find out.
Writs of garnishment and execution are used to take the debtor’s property. The primary difference is that a writ of execution is for property that is in the debtor’s possession (such as property kept in the debtor’s residence) and a writ of garnishment is for property that is in possession of someone other than the debtor who owes the property to the debtor (most usually employers or banks).Creditors usually garnishments over executions, because garnishments are cleaner and simpler. The writ of execution requires the sheriff to take possession of the property, publish a notice of sale in the newspaper, and sell it, whereas the writ of garnishment simply orders the person holding the property to hand it over. Generally, a creditor can take every piece of property that a debtor owns or has a right to. However, state law makes certain property “exempt.” If the debtor objects properly, exempt property cannot be taken in an execution, garnishment, or any other legal process. In the State of Utah, there are exemptions up to a certain dollar amount for homes, cars, a portion of wages, certain furniture and appliances, sentimental items, animals, books, musical instruments, and other property.
When you need legal help from a Utah Garnishment Lawyer, 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