When one of your creditors starts to take money out of your paycheck or bank account, it's called a garnishment. It's a legal collection action that creditors in some states can take to collect after they've obtained a judgment against you. Student loan creditors and the IRS can also use a garnishment to collect what you owe even if they don't file a lawsuit against you. Here's what you should do when you're faced with a garnishment.
How Garnishment Works
Most garnishments require that the creditor obtain a court judgment first. That requires your creditor to file a lawsuit against you. If you're being sued, you'll be served official papers and receive letters from attorneys and court notices.
If your creditor or debt collector gets a judgment against you, the next step is filing paperwork to start the garnishment process. You'll be notified of this as well. These notices will say something like "Notice of Intent to Levy" or "Notice of Intent to Garnish." While it can be stressful to be served papers and receive these types of notices, it's important to review them carefully. You typically have a limited amount of time to respond.
If you do reach the point where your creditor has asked the court to garnish your wages or your bank account, there are several things you can do to stop a garnishment and maybe even turn the situation to your advantage.
The Fair Debt Collection Practices Act (FDCPA) makes it illegal for debt collectors to use unfair tactics. For example, they can't threaten you with legal action unless they actually intend to sue you.
Talk to Your Creditor
The best way to stop a garnishment is to prevent one in the first place. When you know you’re not going to pay your account according to its terms, contact your creditor to find out about alternative payment options. Some of the alternatives you can negotiate with your creditor include only paying interest for a period, making partial or no payments for a period, reducing the interest rate, or offering to settle the account for something less than what is owed.
Defend the Lawsuit
If your creditor files a lawsuit against you, you may have defenses that would prevent the creditor from taking a judgment, or might at least provide you some bargaining leverage. If possible, negotiate a settlement with the creditor before the court enters a judgment. If the creditor gets a judgment against you, your options are more limited. You may still be able to negotiate to pay a settlement amount that’s less than the amount you owe, but the judgment will erase any defenses that you could have brought during the court case on your debt.
Challenge the Garnishment
Once the creditor obtains a judgment and asks the court to order a garnishment, the creditor is required to notify you before the garnishment takes place. That way, if you have any defenses to the garnishment itself, you can plead your case.
Even at that late date, after the court has entered the judgment, many creditors will agree to stop the garnishment if you enter into a payment arrangement.
It's much easier to deal with debt collectors and creditors before you reach the lawsuit stage. Once a creditor decides to file a lawsuit, you'll be dealing with attorneys. It's certainly possible for you to defend a lawsuit or a garnishment on your own, but it's not necessarily the best course of action. You may think you're saving money by not hiring an attorney to defend you or challenge the garnishment, but attorneys can often save you much more money than they cost. Many attorneys who work with consumers offer no-cost or low-cost consultations. A good place to look for a consumer attorney is the National Association of Consumer Advocates.
Legal aid offices can help if you meet certain criteria. There are legal aid offices in every state.
File a Bankruptcy Case
Filing a bankruptcy case will also stop a garnishment. In most bankruptcy cases, an injunction called an automatic stay goes into effect when a bankruptcy is filed. This injunction stops most collection activity, including calls and letters, and most lawsuits and garnishments. It may be possible for the creditor to ask the bankruptcy court to lift the automatic stay to allow the garnishment to continue, but the court will only allow that under certain special circumstances.
Whether your debt can ultimately be discharged in a bankruptcy case largely depends on the type of debt and bankruptcy you file. An experienced consumer attorney can help you explore your options.