Narrator: This video is about garnishment. Garnishment is a legal process that debt collectors can use if they have a court order or judgment against you. Garnishment allows debt collectors to take wages and money in bank accounts to pay a debt. This video will talk about what a debt collector can and cannot take from you. It will also talk about steps you can take to make sure they follow the rules. This video is for information only and is not meant to provide legal advice. Information may become outdated as laws change. The legal information in this video applies only to Georgia. You should talk to a lawyer about your individual situation.
Debt Collectors Need a Court Order
A mortgage company can foreclose on your house and a car lender can take your car if you do not keep up with your payments. These are called “secured debts”. However, for other kinds of debts, the debt collector must have a court order before it can take any of your wages or money. A debt collector gets a court order against you by suing you and winning the case.
Sometimes collectors threaten to garnish when they only have an award from an arbitrator. This is not legal. They cannot garnish your money without first going to court to turn the arbitration award into a court order. If a collector does try to turn an arbitration award into a court order, you should know you have a right to a hearing in front of a judge.
Sometimes collectors threaten to garnish when they have never taken you to court or arbitration. This is not legal either. There are laws that can protect you when collectors make false or intimidating statements when trying to collect a debt. If this is happening to you, you should try to talk to a lawyer.
Never Ignore Court Papers
You should never ignore court papers because of the chance of having a default judgment entered against you. If a debt collector sues you and you don’t respond, it will get a default judgment and win the case automatically.
Respond to court Papers to Avoid Default Judgments
Even if you have very strong defenses, you will automatically lose if you ignore the lawsuit.
What to do if you are sued about a debt?
You can learn more about being sued by a debt collector in another video called, “What to do if you are sued by a debt collector?”
What can you do about a Court Order?
Let’s assume that a debt collector does have a court order against you. What can you do?
First, if you have never received a notice that you were being sued, or if there was some other good reason why you did not respond, you can ask to have the court order overturned, or vacated. The debt collector may sue you again, but this time you will know about it and you can defend yourself.
If you are being garnished, you can file a written objection with the court. Some reasons for filing a written objection might be that you have already paid the debt off, or that you don’t owe the money for some other reason.
Objecting to a garnishment can be very complicated and the deadlines can be very short. If possible, you should try to get a lawyer to help you. In Georgia, the objection to the garnishment could be called a traverse or an affidavit, depending on the circumstances.
Third, even if the debt collector has a proper court order, there are state and federal laws that protect some of your income and assets from being taken through garnishment. Let’s talk about what debt collectors can and cannot take when they enforce a court order against you.
Most Government Benefits are Fully Protected from Garnishment
Government benefits such as Social Security, TANF or welfare, veterans’ benefits, workers’ compensation, and unemployment are fully protected, or exempt. If you receive this kind of income, debt collectors should not take any of it, even after it is deposited into your bank account.
Debt collectors sometimes use garnishment as a tactic to bully you into paying. Debt collectors can arrange through the courts to have the bank freeze your account, even if the account has protected money. You may need to file papers in court or request a hearing to unfreeze the account and protect your money. This is easier if you do not put other money, such as gifts or wages, into the same account as your benefits.
Another option is to receive your benefits by electronic debit card, which will keep them completely safe from debt collectors with court orders. Debt collectors can also take some of your wages by sending court papers that tell your employer to deduct part of your paycheck.
In Georgia: the smaller amount can be deducted. 25% of take home pay, or weekly take home pay minus $217.50.
However, they cannot take your whole paycheck. Federal and state laws say that they have to leave you a minimum amount. At the most, they can take 25% of your take home pay. In Georgia, for 2010, a collector can only take the smallest of either of these amounts:
25% of your take home pay, or
What’s left when you subtract $217.50 from your weekly take home pay.
You have the right to keep this much, even if more than one debt collector is garnishing your wages. If you owe child support or alimony, the amount that can be garnished from your wages is much higher.
There are other kinds of income that may be protected under certain circumstances. In Georgia, these might include retirement or pension benefits, private disability insurance, or disaster relief payments. If you are being garnished and you think your money may be protected, you should talk to a lawyer right away.
To review, debt collectors can only take your money if they have a court order or judgment against you.
You should never ignore court documents because that can result in a default judgment against you.
Every court document that you receive will tell you a date by which you must take action. Do not miss that deadline.
You can try to vacate a default judgment if there was a good reason why you didn’t respond. Only a judge can decide whether you had a legally good reason for not responding.
Part of your wages and almost all types of government benefits are protected. To make government benefits easier to protect, try not to mix them up with other types of money.
If you do have money that can be taken by a debt collector, you can try to work out a payment plan instead. Just don’t agree to pay more than you can afford or more than the debt collector would be allowed to take.
You may want to find a lawyer to help you.
Here is some information about finding legal help in your area.