Garnishment is a legal remedy available to a creditor once he has obtained a court judgment against a debtor for money owed. A creditor may be able to garnish either the debtor's income or bank account -- or both. State laws will vary with regard to the process involved, and the exact garnishment paperwork needed to effectuate a garnishment, but the general concept remains similar in all jurisdictions.
Judgment Process
The first step in the legal process when a debt is owed is for the plaintiff (creditor) to file a lawsuit against the defendant (debtor). In many cases the lawsuit can be filed in the local small claims court, depending on the amount owed. The defendant must then be notified of the lawsuit and given an opportunity to respond by filing an answer with the court. A trial is eventually set, and the judge or jury will determine if the defendant does, indeed, owe the money to the plaintiff. If the court finds in favor of the plaintiff, it will enter a judgment against the defendant for the amount owed.
Post-Judgment Garnishment
Once a judgment has been entered against the defendant a mandatory appeals period usually runs. A common time frame for an appeal is 30 days. Once the time within which the defendant has to file and appeal has passed, the plaintiff may begin post-judgment proceedings in an attempt to actually collect the money owed. State laws and procedures will vary, but the plaintiff must generally petition the court the defendant back to court. When the defendant appears for court this time, the plaintiff may ask questions regarding the defendant's income and assets in an attempt to determine if the defendant is capable of paying the debt. If it appears that the defendant has income or assets that are available for collection of the judgment, then the plaintiff may begin garnishment proceedings.
Application for Garnishment
Garnishments generally take two forms -- wage garnishments and bank account garnishments. The plaintiff must petition the court for a garnishment, often called a "writ of garnishment." Court forms requesting a garnishment are often found on the local small claims court website. The plaintiff will need specific information such as where the defendant works or banks. This information should have been gathered when the defendant was summonsed back to court after the original trial.
Order for Garnishment
If the court is satisfied that an order, or writ of garnishment, should be ordered then the court will issue the order. The order will then be served on the defendant, his employer and/or his bank. An employer must then deduct the amount indicated in the order from the defendant's paycheck each pay period until further notice from the court. A bank must "freeze" the bank account and forward funds to the court to help satisfy the judgment. If a defendant believes that any state or federal exemptions to the garnishment apply, he should contact the court and inquire about the process for claiming the exemptions.
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