Help- Garnishment questions!!

[sealpup]

Of course I find this out on a Friday evening and cannot call anyone.
My paycheck was garnished today for $312. How do I go about finding out who did this?? I thought your employer had to tell you prior to that happening? This has never happened to me before. Shouldn't you be told where your $ is going to and get credit for it?
I have only had to give out my bank/employer info twice in this process. Is it likely to be one of the creditors I had to do this for? Or could it be someone else?
I will be filing bk within the next week or two, is there anyway to get this back? Could a trustee view this as a preferential payment and take it back?
Thank you in advance!!

[justbroke]

I'm sorry to read about this.

It's not enough for a preference. I've never had a garnishment, but they usually don't tell you since the element of surprise is best. They will tell you that they did in fact garnish your pay or levy your bank account within several days. You will not be able to recover this since it was gone before you filed. The stay only matters after filing.

The only thing that stops a garnishment or levy is a court order to stay the garnishment. Bankruptcy automatically provides such a stay.

[sealpup]

Thanks! I'll really be interested to find out who in the world this is. Imagine the "element of surprise" when I file bk next week and it stops the garnishment! I'd love to call them up myself after I'm filed and info them and give them my case #. I've been dragging my feet on this afraid that we will have some other medical bill or something pop up after we file, but this is the straw that broke the camels back. All my paperwork is done, all I have to do is pay my final installment to the lawyer and tell him to file it.

[corrin69]

Wage garnishment applications are not ex parte proceedings(at least not here in NJ). That means you are supposed to get notice of the creditor's application to garnish your wages and an opportunity to be heard on the matter. Also, there is nothing preventing your employer from advising you the received a garnishment order and sometimes they can hold it for a payroll cycle. Sorry this happened to you.

[daxtell]

Before I filed for bankruptcy I had a judgment and the creditor next filed a garnishment. In the area where I live, you can view all cases civil and traffic or otherwise online on the court website for all counties in the state. So I could see that they had a garnishment pending there online. Anyone can view it. Also they served the papers to me (posted on my door and also at my work).

The garnishment stopped immediately when I filed. And, the trustee in my case asked my lawyer to get more information on the creditor who did this because he wanted the money back. After the trustee asked for this extra information at my 341, my lawyer said this means if they get the money back, I could get it back if they exempt it.

[sealpup]

daxtell- thanks for sharing. Would you possibly mind sharing what the $ amount of the garnishment was? I am guessing with it only being a little over $300 the trustee won't ask for it back. I am going to ask my lawyer if I can somehow exempt it though. Would love to get it back, even if it just went to the trustee for redistribution! Were you served the notice before or after the garnishment happened? How were you served at work- did it come from someone within your company, or did the sheriff or someone from outside show up and hand it to you? I work at 2 different hospitals, my schedule is erratic and I never work the same days each week. I think they'd have a hard time trying to track me down at work! I am planning on calling my payroll dept. first thing Mondy morning and ask them who is doing this, and also my attorney.

[sealpup]

corrin69- thanks! How can I find out if it's ex parte in CO? I have looked up a ton about wage garnishment in CO and I can't find anything specific for my state saying they have to give you a notice.

[DesdemonaB]

HI sealpup

Everyone is correct BK creates an automatic stay of relief, but paperwork called Garnishment Release must be filed with the court that award the garnishment to stop the actual garnishment.

I had a garnishment that caused me to file back in November. I filed 11.12.2010 and the garnishment release was filed by the OC on 11.17.2010 but it wasn’t signed by the court till 11.24.2010. It then has to snail mailed to you, the OC and your payroll department; once your payroll department receives the release only then does the garnishments stop.

As you can see there is a gap between the date of filing BK and when the courts sign the garnishment release, I still had my 11.24 paycheck garnished as well as my 12.3 check because I work for a large 17.5K+ employee company so the payroll department stated they received the release after my 11.24 and between payroll periods and it to late to stop the second one.

Good News – there is a line on the release that states any amounts withheld by the garnishee on or after (there will be a date here) shall be returned to the defendant and further withholdings shall be discontinued. The garnishee (my employer) must hold the funds for 28 days before sending to the OC. My garnishments were not returned till my 12.23 and 1.6.2011 paychecks.

Bad News – the UST could/would want those payments, my UST asked me to bring my paperwork and asked what the amounts were – but in the end did not pursue them.

Not sure if you file your state tax return yet, but your state refund (if you get one) could be garnished too. If it was garnishable, you will receive a garnishment release on that too, same goes with if they attempted to garnish your bank account.

I am a bit surprised that you don’t know who holds the garnishment, there is at least three piece of paperwork that have to be filed and signed by court and you the defendant must receive all three.

1. Summons and Complaint must be served and you must sign for – this is the paperwork you have 21/28 days to file a written answer with the court.
2. If you did not answer the Summons and Complaint you would have received a Default Request, Affidavit, Entry, and Judgment (Sum Certain) - this would be a called a Default Judgment and should state the total judgment amount.
3. Request and Writ of Garnishment (nonperidodic) it states you have 14 days after this writ is mailed or delivered to you to file objections with the court. And under To The Garnishee (your company’s payroll department) the first thing it says within 7 days after you are served with this writ, you must deliver a copy of this writ to the defendant (you) in person or mail a copy to his or her last-known address by first class mail.

Good luck with your filing, ask your lawyer what to do with any returned garnished funds – I would hold them or have a make sure you have a plan in place in case the UST asks for them, if they are not exemptible.

[IamOld]

Thanks so much for all the info!

I will say this - when I got bankruptcy filings for ee's, I IMMEDIATELY stopped the garnishment. Fed law trumps state law...

HI sealpup

Everyone is correct BK creates an automatic stay of relief, but paperwork called Garnishment Release must be filed with the court that award the garnishment to stop the actual garnishment.

I had a garnishment that caused me to file back in November. I filed 11.12.2010 and the garnishment release was filed by the OC on 11.17.2010 but it wasn’t signed by the court till 11.24.2010. It then has to snail mailed to you, the OC and your payroll department; once your payroll department receives the release only then does the garnishments stop.

As you can see there is a gap between the date of filing BK and when the courts sign the garnishment release, I still had my 11.24 paycheck garnished as well as my 12.3 check because I work for a large 17.5K+ employee company so the payroll department stated they received the release after my 11.24 and between payroll periods and it to late to stop the second one.

Good News – there is a line on the release that states any amounts withheld by the garnishee on or after (there will be a date here) shall be returned to the defendant and further withholdings shall be discontinued. The garnishee (my employer) must hold the funds for 28 days before sending to the OC. My garnishments were not returned till my 12.23 and 1.6.2011 paychecks.

Bad News – the UST could/would want those payments, my UST asked me to bring my paperwork and asked what the amounts were – but in the end did not pursue them.

Not sure if you file your state tax return yet, but your state refund (if you get one) could be garnished too. If it was garnishable, you will receive a garnishment release on that too, same goes with if they attempted to garnish your bank account.

I am a bit surprised that you don’t know who holds the garnishment, there is at least three piece of paperwork that have to be filed and signed by court and you the defendant must receive all three.

1. Summons and Complaint must be served and you must sign for – this is the paperwork you have 21/28 days to file a written answer with the court.
2. If you did not answer the Summons and Complaint you would have received a Default Request, Affidavit, Entry, and Judgment (Sum Certain) - this would be a called a Default Judgment and should state the total judgment amount.
3. Request and Writ of Garnishment (nonperidodic) it states you have 14 days after this writ is mailed or delivered to you to file objections with the court. And under To The Garnishee (your company’s payroll department) the first thing it says within 7 days after you are served with this writ, you must deliver a copy of this writ to the defendant (you) in person or mail a copy to his or her last-known address by first class mail.

Good luck with your filing, ask your lawyer what to do with any returned garnished funds – I would hold them or have a make sure you have a plan in place in case the UST asks for them, if they are not exemptible.

[daxtell]

Sealpup: Mine was a couple thousand dollars that they collected over a couple of months in the six months before filing. They served my work-came inside the building and the receptionist signed for it and gave it to payroll. They did this a couple of months before the garnishment court hearing. Because the day the judgment is filed, they can collect from that point forward and the garnishment hearing is just to report the status. They also served me at home (posted on my door the garnishment after it happened).

[catleg]

Actually jb, if they garnish one more paycheck (for $312) then it WILL become enough for a preferential payment. At least you may get the satisfaction of denying them the money, even if you don't get it back (though, if your lawyer is sharp and the stars align, you will).

[justbroke]

Sounds like a lot of fun catleg. They will surely be upset about the whole thing.

[kornellred]

Only the US government can garnish wages without a Writ of Garnishment. The only way to obtain a Writ of Garnishment is in civil court. There is no way in the world that anyone can find their wages garnished without knowing it was bound to happen.

[enuffznuff]

Only the US government can garnish wages without a Writ of Garnishment. The only way to obtain a Writ of Garnishment is in civil court. There is no way in the world that anyone can find their wages garnished without knowing it was bound to happen.

True provided the company served proper notice. Some of them are very tricky about this (ie, mailing notice to old addresses claiming that was all they had even when they've sent other mail to current address, etc.) It's happened to friends of mine, who learned about judgments only when a bank account was levied because all notices were sent to a previous address, even though the creditor not only had the current address but had sent mail there before. Friend challenged the levy and lost.

[disconapper]

My wages are currently being garnished by the state for 25%, I received no notice, and I'm pretty sure they were not obligated to tell me either. I was also served a summons a few weeks back but I'll be filed for the BK before the court date and I called the attorney that is suing me and gave him my attorney's information.

I was unaware of the extra paperwork to stop the garnishment. (Yet another thing I've learned on this forum.) So I have to make sure my attorney files a Garnishment Release in addition to my bankruptcy paperwork? It's a state tax debt, does that make any difference? Wouldn't the state know of the BK filing since it's being filed in a state court?