Bankruptcy Attorney in Miami, FL
Bankruptcy Attorney in Miami, FL
In order to have your wages garnished there first has to be a judgment against you. That means you must be sued by a creditor who you owe money to, and they get a judgment from the court saying you do owe the money. Once a judgment is entered against you, you will normally get a copy from the creditor or the court. They will attach a list of questions that they will ask you to answer. These questions are not required to be answered. It’s just a request. However, if the questions are not answered, the creditor can request an order from the court to compel you to answer. One of the questions is where do you work? Once there is an order compelling you to answer, you must answer. Once the creditor finds out where you work, they can file a lawsuit against your employer to force the employer to withhold from you 25% of your take home pay (garnishment). Once the employer does this, you will have a chance to set up a court hearing to say the wages being held should not be garnished. Under Florida Statutes section 222.11, your wages are exempt if you have a dependent and are the head of a household. A dependent is a person whom you pay more than half of their living expenses. This is usually proved by showing a copy of your tax return to the court. It could take up to three months to set up this hearing. Meanwhile, 25% of your wages will continue to be garnished while this process is ongoing.
Another way to stop a garnishment is to file for bankruptcy. Whether you file a Chapter 7 or a Chapter 13 does not make a difference. Either way, all creditors must immediately stop any attempts to collect on a debt.
If your wages are being garnished, that means that one of your creditors has obtained a judgment against you. However, in order to have a judgment entered against you, you must first be served in person or someone else who resides with you over the age of 16 must have accepted service of process (a copy of the lawsuit) from a process server. If this has not happened, you can file a motion with the court, and claim that you did not get service of process, and the judge may throw out the default judgment against you. That means the garnishment must stop as well. It also means that the case has to start over. You must be properly served, and you must be given a chance to defend yourself. Ultimately, if you lose the case, the garnishment may be entered again, but if you win the case, you no longer legally owe the debt.
As stated above the garnishment will immediately stop. Usually, the judgment disappears. However, if you own real property that is not your homestead in the county where the judgment was recorded in the public records, that judgment acts as a lien on any equity you may have in that real estate. Say the judgment is $10,000.00, and you only have $3,000.00 in equity in that investment property. In a bankruptcy, your attorney can file motions to value, and you will be required to repay the $3,000.00, to the creditor. In Chapter 7, the debt must be paid back immediately. In a Chapter 13, it must be paid back in the Chapter 13 repayment plan. You can have up to five years to repay that debt. Once you receive your discharge, you will no longer have a lien on your property. The judgment lien must be disclosed to your attorney to make sure he/she can file the appropriate motions.
Garnishment is specific to wages, but another collection method is levy. A levy is when the judgment creditor sends a sheriff out to take your property and sell it at an auction. For example, your vehicle can be taken by the sheriff and sold at auction so the equity can be paid to the creditor. You will still be able to use any of the exemptions you are allowed to take under the Florida Constitution or Florida Statutes to get your property back. But getting your property back may take a long time and it is very inconvenient. By the way, if a vehicle is levied by a creditor rather than being repossessed, it can be required to be returned prior to the auction if a bankruptcy is filed.
The short answer is never. But the underlying judgment does go on your credit report once the judgment is recorded.
Because a garnishment is an attempt to collect a debt, the things garnished must immediately be returned. Therefore, at the most, it should take a couple of days to get your money or other items taken back once the bankruptcy has been filed.
Many lawyers never get on the phone with their clients to give updates or to answer general questions. We at BankruptcyNow take pride in keeping our client informed from beginning to end of what’s going on and to answer questions about your case. We try to put ourselves in the clients shoes and know how frustrating it can be to not have someone available to answer questions. Sometimes, the lawyers are in court. Most bankruptcy court hearings take all day. Therefore, if we are not available, you will call you back the next day.
There is no limitation in Florida as to how or when a creditor can attempt to collect on their debt. The only time they must stop is either when they are paid in full or a bankruptcy is filed. So, there may be several collection efforts against you at the same time by only one creditor.
This question depends on many factors, and what is right for you. If you owe $10,000.00, and you are making $25,000.00 a year, it’s unlikely the debt will ever be paid off. However, if you owe $50,00.00, and you are making $500,000 a year with a lot of savings, bankruptcy may not be the best way around paying off the debt. The answer to this question depends on your particular circumstances. Also, if you have a garnishment against you, that is another factor in determining whether you should file for bankruptcy. It’s very difficult to keep up with normal bills with 100% of your paycheck. It makes it almost impossible if you have a levy or wage garnishment.