Well, yes and no. Yes, a creditor can garnish, but no, they can’t just start garnishing without going through a series of steps first. The first thing that has to happen is the creditor has to file a lawsuit. (There are two exceptions to this first step–the IRS and Student Loan Creditors).
You have to be served with the lawsuit and you have time to reply to the lawsuit with any defenses you might have. If you defend and lose, the creditor will ask for a judgment.
If you don’t respond, the Creditor will ask for a judgment. Either way, the creditor must have a judgment before Step Two. Step Two: the creditor must seek a writ of garnishment from the Court. The Court generally signs this writ (another word for an Order) when the Creditor files it. The Writ of Garnishment is then sent to your employer (and the Creditor may or may not know who the employer is).
When the employer gets the writ of garnishment, they are bound by the Court’s Order to withhold money from your paycheck and send it to the creditor. State law generally protects a portion of your wages in order to leave you enough money for the necessities of life, but that amount is usually small.
Step Three: You are served with a copy of the Writ. Sometimes there are objections to the garnishment that can be raised. If you file an objection with the Court, the Court will hold a hearing on whether your paycheck should be garnished. The objections are based on state law.
If you are served with a lawsuit, it is wise to consult with an attorney immediately. Sometimes there are defenses to the lawsuit and if you have a defense, it must be raised before the Creditor gets a judgment. An experienced attorney can assist you in determining whether you have any defenses.
In addition, if a creditor has told you that they will garnish tomorrow if you don’t pay today, and you haven’t been served with a lawsuit/there is no judgment existing, then you may have an excellent case to sue the creditor for violations of your state’s debt collection laws.
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Last modified: June 30, 2008