Very little is as infuriating as getting your paycheck only to discover that a portion of your wages are being withheld to satisfy an old debt. If this has ever happened to you, you have experienced a wage garnishment. Wage garnishment is often the last resort of creditors who cannot procure a voluntary payment from you. Fortunately, you have options at your disposal to fight the wage garnishment and stop your employer from withholding your earnings.
How Wage Garnishment Works
Wage garnishment occurs most often over unsecured debts. When you owe an unsecured debt to a creditor, it does not have the option of repossessing any property that you own. You are expected to pay on good faith. When you do not, the creditor will likely send the debt to a collection agency.
A collection agency knows that your likelihood of paying the debt is low. Because of this, it has the option to file a lawsuit against you a mere 30 days after notifying you in writing that it is the new owner of your debt. If you do not respond and dispute the validity of the account, you may discover a court summons at your doorstep.
Failing to respond to the court summons and defend yourself in court is a critical mistake. If you do not appear in court, the collection agency will win its bid for a judgment against you by default. In some states, once a judgment is entered against a defendant for a debt, the plaintiff may then petition the court for a wage garnishment. You may or may not be notified of the wage garnishment before it occurs.
Build a Legitimate Defense
If you want a wage garnishment order overturned, you will need to return to court with a valid reason why your wages should not be garnished. Even if the debt is legitimately yours, you may be able to avoid garnishment by proving that you were either not properly served or the debt is too old to enforce.
Keep in mind that if your wage garnishment is a government garnishment, you are unlikely to have received a court summons at all. The federal government is not required to secure a legal judgment against you prior to garnishing your wages.
Proper Notification of a Lawsuit
Different states have different regulations regarding what is and is not considered proper delivery of a court summons. If you did not receive the court summons at all, however, you have a valid reason to request that the court reopen the case. A defendant who does not receive a summons is robbed of the ability to appear in court and defend himself. In addition, this reflects badly on your creditor whose responsibility it is to ensure that you are properly served prior to a lawsuit.
The Age of the Debt
Contrary to what your creditors would like you to believe, most unsecured debts are only enforceable for a limited period of time. This time period is known as the statute of limitations. The statute of limitations for your debts will differ depending on the state you live in. A creditor, however, cannot legally force you to pay an unsecured debt on which the statute of limitations has expired. Unfortunately, not all creditors adhere to this rule.
If you are sued for a debt that is too old to be legally valid in your state and do not respond to the lawsuit, the creditor will be granted a default judgment against you by the court. The court will not investigate the age of the debt. It is up to you to present that information as a valid defense. You may, however, notify the court of an expired statute of limitations after a wage garnishment is in effect to have the garnishment order overturned.
Appeal the Initial Judgment
Whenever a judgment is levied against you, you have a certain amount of time in which you have the option to appeal the judgment with the court that originally issued it. The appeal process varies by state, so check with your county clerk’s office to find out the time limit for appeals in your area. If you are able to successfully appeal the judgment, it will be vacated. Without a legitimate judgment against you, the wage garnishment must immediately cease.
If you are considering fighting a wage garnishment, you may want to hire an attorney. An attorney can help you fill out the necessary forms and will represent you in court. In some cases, you will also have grounds to file a lawsuit against the creditor for damages. If you opt to do so, you may include the cost of your attorney’s fees in the lawsuit.
Many creditors will not bother to defend against your attempt to overturn a wage garnishment order. If the debt is not for a high sum of money or you have a valid defense, it is rarely worth it for the creditor to pay a representative or attorney to attend court hearings in an attempt to uphold the judgment