Wage Garnishment
One of the most common ways wage garnishment in the State of Florida begins is by a creditor obtaining a judgment against an individual consumer in the state. The creditor must file a lawsuit, follow the applicable rules of procedure, and obtain a judgment through the court system against the individual before the creditor can obtain a judgment.
Unfortunately, these judgments often result from individuals failing to respond when they receive a summons notifying them there is a pending, active lawsuit against them in state court. Florida allows a defendant just twenty days to respond to a lawsuit to prevent a default judgment, a judgment for failing to respond, from being entered by the courts.
In the event that a judgment is entered, judgments are enforceable for twenty years in the State of Florida, and interest accrues at a statutory rate.
If an individual fails to pay that judgment, creditors have several options to enforce that judgment, including wage garnishment. Creditors may obtain an order from the court to garnish up to twenty-five percent of a person’s net pay. Typically, the garnishment continues until the judgment, with interest, is paid in full.
One way to prevent or stop that garnishment is to file a bankruptcy. Under the United States Code, the bankruptcy court enters an injunction, called an automatic stay, which prevents creditors from taking any further action against the individual who has filed bankruptcy, known as the debtor. This stay is automatic, and applies in both Chapter 7 bankruptcy and Chapter 13 bankruptcy. The stay is designed to prevent creditors from initiating lawsuits, obtaining judgments, or beginning or continuing to garnish wages.
In some situations, creditors can successfully move to have the automatic stay lifted. If granted, this motion allows the specific creditor who asks for relief to move forward against the individual debtor.
If the debtor has listed the creditor in his bankruptcy, the Bankruptcy Noticing Center sends notification to that creditor of the pending bankruptcy. It also alerts the creditor to the existence of the automatic stay. In most cases, this notification is sufficient to prevent creditors from further action.
In the event that a creditor continues to garnish wages of the debtor, the debtor and his attorney have several options. Often, the attorney can contact the creditor or its attorney directly and inform him of the ramifications of violating the automatic stay. In extremely rare cases, when a creditor continues to garnish wages in violation of the bankruptcy code, the debtor and his attorney can decide to move for sanctions against that creditor. The bankruptcy court has several different types of sanctions available that it may order against a creditor in violation of the bankruptcy stay.
For more information about filing bankruptcy in the State of Florida, on which chapter is best for you, or how to prevent a judgment and subsequent garnishment, please contact Cleaveland & Cleaveland, P.L., for a free consultation.
