Can wages by garnished before a court date?
By Sally Herigstad
To Her Credit
Sally Herigstad is a certified public accountant and the author of "Help! I Can't Pay My Bills: Surviving a Financial Crisis" (St. Martin's Press, 2006). She writes "To Her Credit," a weekly reader Q&A column about issues involving women, credit and debt, for CreditCards.com, and also writes regularly for MSN Money, Interest.com and Bankrate.com, and has guested on Martha Stewart Radio and other programs. See her website SallyHerigstad.com
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Dear To Her Credit,
My husband and I have gotten behind on some of our bills. He
was served with a summons and complaint (we live in Colorado) some time back.
The court date is tomorrow, so we didn't expect anything to happen until then.
But at work today, when he received his paycheck, we saw that the law firm has already
started wage garnishment.
Shouldn't he have gotten some type of notice before that
happened? How can they do that if they haven't even been to court yet? -- Mary
It's a common misconception that creditors can't start
garnishment until they go to court. Joshua P. Friedman, a collections and
judgment enforcement attorney in Los Angeles, sets us straight.
"This is possible if the debtor read the summons and
related court paperwork incorrectly," he says. "What typically
happens is the plaintiff files suit and serves the lawsuit on the defendant.
Depending on how they were served and what state they are in, they have a
certain time period in which they must respond to the lawsuit (with answer, cross-complaint,
demurrer or otherwise). At the same time, the court sets certain court dates
for hearings on issues (e.g., order to show cause re: service of process; order
to show cause re: default judgment; etc.)."
The court date may be months in the future. In the meantime,
however, Friedman says, "If the defendant is served and does not respond
to the lawsuit, the plaintiff does not need to wait until the court date to
pursue a default judgment (aka a judgment in favor of the plaintiff due to
defendant's failure to respond). In these scenarios, judgment will be entered
prior to the first scheduled court date, and then after a short statutory
period, the plaintiff, now judgment creditor, can begin to enforce the judgment
against the defendant, now judgment debtor."
By now, you've already had your court date, and I assume the
judgment has been rendered. The best thing you can do at this point in time is
defend your income and other assets from garnishment. If the garnishment makes
it difficult for you to support yourself and your family, you should be able to
ask the court to adjust the amount of the garnishment.
All states have garnishment rules, but the specifics about
how much time you have to respond, how much income is exempt from garnishment
and so on vary from state to state. That's why it's so important to get
professional legal advice. Friedman says, "The debtor should contact an
attorney as soon as possible to try to have the default set aside and defend
the case. Time is of the essence here."
Bankruptcy is always an option when debts have risen past
the point where you can reasonably expect to ever pay them off. I hope your
situation isn't that bad. You are generally much better paying off a debt, even
through garnishment, than going through the expense, headache and demoralizing
experience of bankruptcy. In addition, if your expenses are greater than your
income, starting over with a "fresh slate" doesn't really help much.
The slate doesn't stay fresh very long unless underlying causes of financial
problems are resolved.
A credit counselor or other financial counselor can help you
look at your total financial picture and weigh all your options so you can
decide how to proceed.
A wage garnishment can sometimes be a wake-up call, albeit
an unpleasant one. I hope you take this time to find ways to improve your financial
situation going forward. Hard times can come from human error, relationship
problems, bad luck or a combination of all three. Throw in a bad economy like
we've been having, and many people find themselves in a similar situation to
yours. But there is always hope and a way to improve things and look to a brighter future. I hope you find the help you need and
start moving toward that future soon.
See related: How wage garnishment works -- and how to avoid it, Bankruptcy protects against wage garnishment, What benefits are exempt from garnishment
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Published: November 25, 2011