Almost without exception my clients who are subject to wage garnishment in Georgia report that they feel “violated” or “horrified” by discovering that 25% of their take home pay 1 has been seized by a creditor. I can certainly understand this emotion – especially if you depend on every penny of your paycheck to cover monthly expenses like rent, utilities, car payments and insurance costs.
How Wage Garnishment Happens in Georgia
With limited exceptions, you can only be wage garnished in Georgia if your creditor has first filed a lawsuit and obtained a judgment. More than a few of my garnishment clients claim that they do not remember being sued – this is an issue for another blog post but anytime you find out that a sheriff’s deputy or process server is looking for you, it is time to take action because this means that you have been sued.
Most collection lawsuits are not answered and go into default. If you do not respond to a lawsuit, the creditor wins automatically and gains the legal right to seize 25% of your take home pay and 100% of any other liquid asset he can find (such as bank accounts).
How to Stop Wage Garnishments
Once the garnishment has started, you do have options to stop it but you need to move quickly.
One option is called a “collateral attack” on the judgment that gave rise to the garnishment. In a collateral attack you must file a lawsuit in the court that issued the judgment and prove that there was a defect in procedure – usually a problem with service of the lawsuit. For example, if the lawsuit was actually served on another person with your name, and you can prove that you were never served, you can go into court after the fact and “undo” the judgment.
The collateral attack approach has several drawbacks. First, you must have legitimate grounds to attack the judgment. It is not enough to go into court and claim that you did get served. Evidence can be a problem. Secondly you will need to hire a lawyer to pursue your collateral attack on the judgment. This type of litigation can get expensive and the garnishment will continue until such time as you can get into court and convince a judge to grant your motion.
The second option is the bankruptcy option. Assuming that bankruptcy otherwise makes sense, you can file Chapter 7 or Chapter 13 and stop the garnishment immediately thanks to the automatic stay in bankruptcy. Our experience has been that many (but not all) creditors will voluntarily return garnished funds upon notice of the bankruptcy filing. If the creditor will not cooperate, you can file a complaint in bankruptcy court under some circumstances to force the creditor to return your money.
As always, it is much easier to prevent a garnishment than to get your money back, so it is in your best interest to seek legal advice as soon as you become aware of a wage garnishment.
If your wages are being garnished and you would like to discuss your options with an experienced bankruptcy and debt relief lawyer, please call Susan Blum or Jonathan Ginsberg at 770-393-4985. We do not charge for phone consultations and we are standing by to help you.