Fill and Sign the Stop Garnishment Form

© 2016 - U.S. Legal Forms, Inc USLegal Pamphlet on How to Stop a Garnishment I NTRODUCTION There are different types of garnishments, as defined by state laws, which vary by state. A garnishment may be made on a one-time or continuing basis. Some kinds of income are exempt, which means that they cannot be garnished at all by creditors for consumer debts, including welfare, unemployment, veterans benefits, Social Security, workers' compensation, pensions, and child support payments that you receive. For ordinary garnishments (i.e., those not for support, bankruptcy, or any state or federal tax), the weekly amount may not exceed the lesser of two figures: 25 percent of the employee's disposable earnings, or the amount by which an employee's disposable earnings are greater than 30 times the federal minimum wage. A writ of garnishment is an order granted to a third party (garnishee), to hold or attach the property of a defendant or judgment creditor. A garnishee can be a person or a corporation who is in possession of the property of a judgment creditor or a defendant. Wage garnishment is a legal procedure in which a person's earnings are required by court order to be withheld by an employer for the payment of a debt such as child support. Title III of the Consumer Credit Protection Act (CCPA) prohibits an employer from discharging an employee whose earnings have been subject to garnishment for any one debt, regardless of the number of levies made or proceedings brought to collect it. Title III protects employees from being discharged by their employers because their wages have been garnished for any one debt and limits the amount of employees' earnings that may be garnished in any one week. An employee is only protected from discharge if the employee's earnings have been subject to garnishment for the first time. Title III applies to all individuals who receive personal earnings and to their employers. Personal earnings include wages, salaries, commissions, bonuses, and income from a pension or retirement program, but does not ordinarily include tips. Specific restrictions apply to court orders for child support or alimony. The garnishment law allows up to 50 percent of a worker's disposable earnings to be garnished for these purposes if the worker is supporting another spouse or child, or up to 60 percent if the worker is not. An additional 5 percent may be garnished for support payments more than l2 weeks in arrears. The wage garnishment law specifies that the garnishment restrictions do not apply to certain bankruptcy court orders, or to debts due for federal or state taxes. If a state wage garnishment law differs from the federal law, the law resulting in the smaller garnishment must be observed. S TOPPING A G ARNISHMENT A motion to quash writ of garnishment can be motion to suppress, set aside or make void a writ of garnishment due to lack of jurisdiction or unlawful basis. The most common reasons for claiming that the garnishment is unlawful include because the money isn’t owed, the improper party is identified as the debtor, or the statute of limitations for collecting the debt has passed. A motion to quash the writ of garnishment asks the judge to nullify its order, to a garnishee, of seizure or attachment of property of a defendant or judgment creditor. The first step in stopping a garnishment for money owed is to contact the individual or company that has attached your wages or bank account. Your employer or bank usually can't help you, they’re obligated to follow the court orders to process the garnishment according to statutory rules. You can try to negotiate with the creditor to work out some kind of payment arrangement or cash settlement offer. An accord and satisfaction is a method of discharging a contract, or settling a cause of action arising either from a contract or a civil wrong (tort), by substituting for the contract or cause of action an agreement for its satisfaction and the performance of the substituted agreement. The accord is the agreement; the satisfaction is the performance of the agreement. If you need help negotiating with your creditors, consider contacting a nonprofit debt counseling organization. You can find a list of counseling agencies by location at the website of the U.S. Trustee, http://www.justice.gov/u st/eo/bapcpa/ccde/index. htm . The federal government has authorized the agencies on this list to provide counseling to debtors considering bankruptcy. However, don't pay anyone to "fix" your credit. To create an accord there must be a substitute offer in full satisfaction of an existing claim, accompanied by a declaration amounting to a condition that if the offer is accepted it will be in full satisfaction of the original claim. If a cash settlement or payment plan is accepted, be sure to keep proof of your payments, such as receipts or cancelled checks. If it is possible, a debtor should get a release included in such an agreement so that the creditor may not pursue the full balance of the debt claimed. If negotiations fail, another option may be to file bankruptcy. However, filing bankrupcty will damage your credit rating for many years, and should only be considered as a last resort. Also, student loans are very difficult to discharge in bankruptcy. Filing bankruptcy legally puts a stop of wage garnishments, as of the date of filing the bankruptcy petition. You will need to let your Human Resources or Payroll Department know about your bankruptcy filing. You can mail or fax a copy of page one of the voluntary petition. This will include the filing stamp on the page as proof of its filing. You should also let the creditor's attorney know about the bankruptcy filing. The attorney will be listed on the Earnings Withholding Order (EWO) paperwork that started the garnishment. Also, it is recommended to provide a copy of your petition as proof of filing to the local law enforcement who also will be on the EWO. Once a writ of garnishment has been awarded, it is very difficult to undo, but not impossible, especially if the garnishment is taking up a large portion out of your living expenses. If your wages are being garnished and you can't even afford basic necessities of living, then you can file a "Claim of Exemption" form with the court that issued the writ. When you have your hearing in court, you should bring documented proof of your income and monthly living expenses, such as mortgage or rent payments, utilities, groceries, etc., to help convince the judge to set aside the writ of garnishment because it is preventing you from getting the basic necessities in life. Once the court is convinced, it can issue a judgment setting aside the original writ, preventing the creditor from further garnishing your wage, or issue a new writ for a smaller amount of garnishment, leaving you enough money to meet the basic needs. Once the judgment is settled or paid in full, a satisfaction of judgment should be filed in court by the creditor. Be sure you obtain documentation from the creditor once the judgment has been paid in full so that you have proof you paid the debt. It may be necessary to provide this proof of payment in the future if you want to obtain a loan or credit. F EDERAL L AW ON G ARNISHING S OCIAL S ECURITY B ENEFITS Generally, Social Security benefits are exempt from execution, levy, attachment, garnishment, or other legal process, or from the operation of any bankruptcy or insolvency law. The exceptions are that benefits are subject: (1) to the authority of the Secretary of the Treasury to make levies for the collection of delinquent Federal taxes and under certain circumstances delinquent child support payments; and (2) to garnishment or similar legal process brought by an individual to enforce a child support or alimony obligation. The most that can be garnished from Social Security benefits is 15%, and your benefits should never be garnished more than 30 times the current federal minimum wage. Supplemental Security Income (SSI) will never be garnished. (Except to repay SSI overpayments, which can be recovered by a 10% reduction of benefits.)