In Georgia, a wage garnishment occurs when a creditor obtains something called a writ of fieri facias (also called a “Fi Fa”) against you. Generally, creditors can only get a fi fa if they have obtained a court judgment against you, however, the IRS and State of Georgia can get a fi fa without going to court because of special rights assigned to taxing authorities.
Our firm often speaks to clients who are frantic and angry when they discover that checks for rent, groceries or utilities have bounced because someone has garnished their paycheck. In almost every one of these situations we discover that our client had been served with a lawsuit many months earlier, but nothing happened for several months until the garnishment was actually served on their employer.
Can I Ask my Employer to Hold Off on Withholding Money While I Think About What to Do?
Unfortunately, your employer is not likely to sit on the garnishment order. This is because under the law, if your employer does not honor the garnishment, it will become responsible for the full amount of the judgment. Obviously, your employer is not going to want to pay your debt so our experience has been that employers always honor wage garnishment orders.
Are There any Non-Bankruptcy Options to Stop a Wage Garnishment?
You can certainly try to work out a deal with the plaintiff’s attorney representing the judgment creditor. If you have access to a lump sum of cash, you may be able to settle for less than 100 cents on the dollar. However, unless you have cash, there is not much incentive for the plaintiff’s attorney to cancel the garnishment voluntarily.
You could also file a lawsuit in the county where the fi fa was issued to “collaterally attack” the judgment. A collateral attack is one where you argue that the judgment should be voided because you were not properly served or because there is some other fundamental defect in the lawsuit process.
Usually, state court judges will not allow you to argue the merits of whether you actually owe the money if you did not respond in time. For example, if you were properly served a lawsuit to collect a debt that was not yours, but you failed to answer the lawsuit and a judgment was issued, most state court judges will say that you cannot collaterally attack the judgment. This is why, by the way, that you should never ignore any type of lawsuit.
Can Filing Bankruptcy Stop a Wage Garnishment?
Yes, bankruptcy can stop a wage garnishment. Generally the filing of a Chapter 7 or Chapter 13 case will create something called an “automatic stay” which will put an immediate halt to any pending garnishment. Different rules regarding the automatic stay may apply if you have previously filed a bankruptcy within the last few years – your lawyer can explain these rules.
Will I Get my Money Back if I File Bankruptcy?
Sometimes you can get your money back. It depends on how fast we can get your case filed, the Chapter we file and who has possession of the money. Every case is different but you can increase your chances for a favorable result if you move quickly.