How Can I Challenge a Garnishment?
Provided by HG.org
Garnishments can result in the withholding of up to 25 percent of a person’s disposable wages, according to federal law. However, there may be a number of objections that a debtor can raise to reduce or eliminate the garnishment.
Most garnishments result after a creditor receives a court judgment against a debtor. There are specific rules related to debts that arise from child support, taxes or student loans that do not require a separate judgment to allow for garnishment.
Armed with a judgment, creditors can pursue collection efforts, such as wage garnishment. A creditor sends a writ of garnishment to the debtor’s employer, instructing it to withhold non-exempt earnings from the debtor. The employer withholds the appropriate amount of earnings and forwards them to the creditor.
Depending on state laws, objections might be raised after the debtor receives notice of the garnishment or before the garnishment order is issued by the court. Below are a number of potential objections. A lawyer can explain if the following objections are available in your state and based on the circumstances of your case.
Contesting the Underlying Judgment
If the debtor believes that the underlying judgment was not valid for some reason, he or she may challenge the underlying judgment. For example, the debtor may not have received proper notice of the lawsuit so that he or she could contest the claims in the lawsuit. Likewise, if the debtor was not responsible for the debt because it belonged to an ex-spouse or was fraudulent, the debtor may challenge the garnishment on these grounds. However, the debtor must usually file an appeal within a very limited timeframe after the judgment was entered, or he or she can waive such right.
Property Is Exempt
Federal law prohibits the garnishment of Social Security benefits, pension income under ERISA or the REA and other public benefits. State law may provide an exemption for income from workers’ compensation, retirement income, unemployment compensation or other state benefits.
The Garnishment Is Too Much
Some creditors pursue wage garnishment on their own without the assistance of legal counsel. They may not calculate the applicable exempt earnings properly, which may result in trying to collect too high of an amount from each paycheck.
Additionally, federal and state laws may include two different calculations and order the creditor to take the garnishment that results in the lower amount. For example, the federal law allows for a garnishment of up to 25 percent of a debtor’s disposable earnings or the amount by which the debtor’s disposable earnings are more than 30 times the federal limit.
Some states follow a similar structure. Many states provide greater protection and higher exempt earnings to debtors in the state. Some states base caps on the amount that the creditor can garnish based on different income levels. Pennsylvania, North Carolina, South Carolina and Texas largely exempt all of an employee’s disposable earnings in consumer garnishment cases.
In some states, the amount of the garnishment can be reduced or eliminated if the debtor argues that paying the garnishment would cause an undue financial hardship. State laws usually require the debtor to have other dependents. The debtor generally has the burden of proof of showing the financial hardship that would result due to the garnishment.
Some states have head of household exemptions that work similarly. This type of exemption may be asserted if the debtor is primarily responsible for at least one other dependent. States differ as to the amount of earnings that they exempt for this type of claim.
If the creditor did not strictly comply with garnishment procedures, the court may dismiss the garnishment action. For example, the creditor is often required to provide the debtor with notice regarding the potential of a garnishment. Some states require that the creditor first prepare a written demand and intent to garnish a debtor’s wages if the judgment is not paid within a certain period of time.
However, even if this occurs, the creditor can generally start the process over and get a new writ of garnishment signed by the court.
Payments to the Creditor
If the debtor has already paid off the judgment, the creditor is not entitled to a windfall and duplication of payments. Additionally, some states allow a debtor to avoid a garnishment if he or she enters into a repayment plan with the creditor and complies with the terms of the repayment plan.
If a debtor is already being garnished, another creditor is generally not entitled to garnishing a portion of the employee’s wages if doing so would go over the state or federal limits.
If a debtor files bankruptcy, an automatic stay is placed on his or her accounts. This prevents creditors from taking any additional action against the debtor.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.