Can You Garnish on an Unsecured Debt?

If someone owes you an unsecured debt, your state may grant you the right to garnish the debtor's wages or bank accounts if he does not pay what he owes. Before you can request a garnishment order from the court, however, you must win a lawsuit against the debtor in small claims court. This provides you with an official court judgment you can use to place the garnishment.

Facts

Each state has specific laws regarding who can and cannot garnish debtors and the types of garnishment permitted. Only the government can secure a garnishment without filing a lawsuit and winning a judgment. After obtaining a court judgment, you can take the judgment to the county clerk's office and request a writ of garnishment that allows you to seize money the debtor holds in her bank accounts, or force her employer to withhold money from her paychecks until she pays off her debt.

Time Frame

You cannot sue and subsequently obtain a garnishment order for an unsecured debt if the statute of limitations for debt collection in your state has already passed. The statute of limitations begins on the day the debt is 180 days delinquent. For example, if the statute of limitations in your state is four years and your contract with the debtor states that the debt is due on May 1, 2005, the statute of limitations begins 180 days later -- on October 28, 2005. Thus, the last day you can legally sue the debtor is October 28, 2009.

Features

Although you can garnish funds directly from an individual's bank accounts, the U.S. Department of the Treasury notes that you cannot garnish exempt funds. These funds include, but are not limited to unemployment, public assistance, child support, Social Security, alimony, retirement pensions and military annuities. If you inadvertently garnish exempt funds, the debtor can sue you for their return.

Considerations

Your ability to garnish the debtor's wages and bank accounts rests solely on the validity of your court judgment. Your state laws determine how long a judgment is enforceable. Once the enforceability period expires, you lose your garnishment rights.

If you are unsuccessful in collecting the debt, some states give you the option to renew your judgment. If you renew the judgment for a subsequent enforcement period, you must do so prior to its expiration.

Warning

Just because you have the legal right to garnish an individual's wages and bank accounts does not mean you will be successful doing so. If the debtor already has a garnishment order against him, the original garnisher will likely take the full amount permitted by law from the individual's paycheck -- leaving you unable to enforce your writ of garnishment. Other debtors frequently change employers or banks. Because you must know where the debtor works and banks to enforce a garnishment, frequent changes of this nature make collecting a debt more challenging.