What is garnishment?
Debt collectors are allowed to garnish a consumer’s bank account and wages to recover unpaid debts. Although the law permits garnishment before the entry of judgment in limited circumstances, the majority of garnishment in Minnesota occurs after a court judgment has been entered.
To initiate a bank garnishment in Minnesota, a debt collector first sends a garnishment summons to the bank. The bank is required to seize all funds in the consumer’s bank account on the day they process the garnishment summons. Consumers do not get notice of the garnishment until after the funds have been seized, which unfortunately can result in bounced checks and overdraft fees. In contrast, a wage garnishment is initiated by first sending a notice of intent to garnish to the consumer. The debt collector must then wait 10 days before sending a garnishment summons to the consumer’s employer. Upon receipt of the garnishment summons, an employer must seize 25% of the consumer’s after tax earnings for each pay period until the debt is satisfied.
What to do if you’re being garnished
First, determine if any portion of the funds that were seized are exempt. Certain sources of funds are exempt from garnishment in Minnesota. For example, a debt collector may not keep most forms of need-based government aid, such as social security or energy assistance. In addition, a debt collector can only keep up to 25% of your wages, even after you deposited them in your bank account. Minnesota law also provides that child support, some insurance settlement proceeds, and many pension plans are exempt from garnishment. This is not an exhaustive list of exemptions and you should consult with a consumer lawyer to determine what, if any, exemptions you may claim. A consumer lawyer can also help you navigate the process to claim an exemption and get your exempt funds back. It is critical to act quickly because Minnesota law provides very stringent deadlines for claiming an exemption and if you fail to act in the required time, you may lose your ability to claim an exemption.
Another thing to consider if your bank account has been garnished is whether any of the funds that were seized belong to a joint account holder, such as a spouse or child, who has nothing to do with your underlying debt. Under current Minnesota case law, a debt collector may not keep funds in a bank account that were contributed by a joint account holder who is not responsible for the debt. And there is at least one Minnesota court that has ruled that a debt collector that seizes a joint account holder’s funds to satisfy a debt they aren’t responsible for may have violated the Fair Debt Collection Practices Act, or FDCPA, and other Minnesota laws.
You should also consider whether its possible to get the underlying court judgment vacated, or removed. If the judgment was obtained by default and you were never served with the lawsuit, you may be able to have a court vacate the judgment and return the garnished funds to you. Its also possible, under certain circumstances, to get a default judgment vacated even when you were properly served with the lawsuit. Consult with a consumer lawyer to determine whether you have a viable motion to vacate the default judgment.
If you can’t get the judgment vacated, your only other options are probably to either negotiate a settlement or consider filing bankruptcy. A good consumer lawyer can walk you through you options and help you figure out the best one for your unique situation.
(photo: stuart pilbrow)