Garnishments: An ounce of prevention worth a pound of the cure

Recently, more and more calls are coming into my office concerning garnishments and people wanting to contest them.   A garnishment is a court proceeding in which a judgment-holder attempts to seize money from someone’s bank account, paycheck, or other property interest to satisfy a debt that the court has determined is owed.  These are mostly folks trying to protect their paychecks from being significantly reduced to satisfy what are usually very old debts.  Some are folks trying to protect against collection demands and holds against their bank accounts.  As I hope this will explain, an ounce of prevention in these situations is worth far more than a pound of “cure.”

In order for there to be a valid garnishment action filed, a judgment must already have been entered against the person. 

This means that the battle has already been lost and protecting against the garnishment is almost always an uphill battle.  The fact that there is already a judgment means that a lawsuit has already happened and ended, and that the person now being garnished has lost.  Many times, this may have all taken place with the person being garnished knowing very little at all about the lawsuit.

This can happen when a person is served with a lawsuit but does not realize what action he or she must take in response.  If enough time passes, then the person or company that has sued will win in court by default.  This is just about as bad as things can get.  In other cases, the person may have answered appropriately, but due to the knowledge of the plaintiff or their attorneys many things can have taken place that ultimately resulted in the person losing the lawsuit.

Now there are occasions when the lawsuit was lost, but due to some error or legal oversight the person being garnished should not have lost in the first place.  Although you do not typically get a “do-over” in court, if there was not proper service in the first place and the person did not even know that there was a lawsuit, much less that he or she had lost the suit, until a garnishment was filed, there may be an opportunity to challenge both the garnishment and the underlying judgment.

In these situations, the person being garnished needs to file what is called a traverse to the garnishment, as well as other motions pertaining to the underlying judgment.  There may be proceedings that have to take place in more than one county or court and the actions needed to “fix” the situation may be quite complex.  However, depending on the amount of the debt, which may have drastically increased since the last time the person thought about it or saw it, it may be worthwhile to investigate what it takes to fight the garnishment.

Unfortunately, for many of the people who contact my office, by the time there is a garnishment, too much damage has already been done.  Cases that may have been won had they been defended properly have been lost.  It always troubles me to see when someone who never owed a debt in the first place is held responsible for it and has to pay simply because they did not know what to do, how to do it, or was just intimidated by the entire process.  There are many predatory debt collectors out there who know how to manipulate the system to achieve this result.  Some of them do not even care whether or not the person who ends up paying the debt was ever really responsible for the debt in the first place.

Once again, the lesson to be learned is that when in doubt, it is always advisable to seek legal counsel when an action is filed against you.  Do not wait or assume you owe a debt unless and until the party seeking collection proves that you in fact owe the money and that the amount they say you owe is accurate.  The debt collectors are patient and, even if you have no money right now, they will wait months and years until you do, perhaps taking action when you least expect it.