Stopping a Bank Account Garnishment
To stop a bank account garnishment, a judgment debtor should file a claim of exemption, gather all documentation in support of their exemption, and be prepared to prove entitlement to an exemption to the creditor’s attorney or to the judge.
A creditor can serve a writ of garnishment on a bank regardless of whether the money in the bank is exempt or not. The bank can, and should, freeze the account upon being served with the writ. A bank is not liable for withholding the account balances that are later determined to be exempt from garnishment.
When a debtor discovers that his exempt funds have been garnished the first step is to file a claim of exemption. Then, the debtor should file a motion with the issuing court on the grounds that the debtor is head of household or on any other applicable grounds. This motion is called a motion to dissolve the writ of garnishment. The motion should trigger the court to schedule a hearing on the exemption and garnishment. Complaining to the bank will not dissolve the writ, so it does not help the debtor to convince the bank that the funds are exempt.
Motion to Dissolve Writ of Garnishment
After filing a motion with the court to start the hearing process, the debtor’s attorney can directly contact the attorney for the creditor and offer evidence that the debtor is head of household. Evidence can include the debtor’s federal tax returns that indicate that he has child dependents and that the debtor is the family’s principal wage earner. If this evidence clearly shows that the debtor’s wages are exempt and that the account includes only exempt wages, most, but not all, creditor attorneys will voluntarily dismiss the wage garnishment writ.
The attorney will file a dismissal with the court. The court will issue an order dissolving the garnishment, and once the bank receives the dismissal order the bank should unfreeze the accounts. The debtor is not entitled to any interest on money withheld.
Some creditor attorneys or their clients are more aggressive, and they may insist that the debtor go to a court hearing to dissolve the garnishment regardless of evidence first presented. A hearing gives the creditor an opportunity to challenge the initial evidence and pursue other evidence of financial support of the family from sources other than the debtor’s garnished wages.
The debtor’s account will remain garnished until the time of the court hearing. The debtor and his attorney will present evidence at the hearing substantiating that the debtor is “head of household” or substantiating any other exemption. The creditor may present its evidence contesting the exemption. Assuming the court orders that the debtor’s salary or wages are exempt, then that order would direct the garnishee bank to unfreeze the account.
In sum, just because a debtor is head of household and his wages are exempt from garnishment does not mean that he will not be subject to garnishment by a judgment creditor or that he may have to hire an attorney to prove his exemption before a judge. The debtor’s experience depends upon whether the creditor voluntarily dismisses the garnishment of exempt wages or whether dismissal must be pursued through a court hearing.
About the Author
Gideon Alper specializes in asset protection planning for individuals and their families.
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