Ask the County Law Librarian – How to Stop Wage Garnishment

Q. I just got a default judgment against me by a credit card company. I didn’t bother answering the summons and complaint because I figured I didn’t have any defenses—I spent the money but couldn’t pay the bill. A friend told me they could go after my wages, now, though, and take 25% of them until my credit card bill is paid. I don’t make that much money; we live paycheck to paycheck and I can barely afford to feed my family and pay my rent and other bills, which is how I got into this problem in the first place. Can they really take a quarter of my paycheck? Is there anything I can do about this now?

Jin

A. You could attempt to obtain “relief” from the default judgment, but you must prove you had a specific reason under California law, for example, “excusable neglect” under the Code of Civil Procedure § 473(b), for a court to grant relief from a default judgment. Forgetting about the lawsuit, being too busy to properly respond, or being unable to afford an attorney are not grounds for excusable neglect. You also must show that you have a meritorious defense to the original case. Given what you said in your question, it doesn’t sound like you would be successful pursuing relief from default, but you should read the Legal Resource Guide about the process on our website at http://www.saclaw.org/pages/relief-from-default.aspx, so you know all the options.

A judgment creditor can go after your bank accounts and other personal property, your real property, and even put a lien on a lawsuit you have against someone else. You can read about those measures on the California Court’s Self-Help Website at http://www.courts.ca.gov/1179.htm. “Wage garnishment,” however, is probably the most popular method creditors use to collect judgments, because it is the quickest and easiest. A creditor can garnish, or take, up to 25% of the amount you earn over the federal minimum wage, unless part of your paycheck is exempt under other rules.

In order to garnish your wages a creditor must ask the court for a Writ of Execution, which is an order directing the Sheriff to enforce the judgment in your case in the county where your assets are located, and an Earnings Withholding Order (EWO). Once granted, the Sheriff serves your employer with the EWO, which requires the employer to pay part of your earnings to the Sheriff. Once your employer instructs you that they have received an EWO you have 10 days in which to file your Claim of Exemption and a Financial Statement with the Sheriff’s department listed on the EWO. There is nothing you can do until your employer receives the EWO.

A Claim of Exemption is the form you must file with the Sheriff to explain why some or all of the wages the creditor wants your employer to garnish should be exempt (excluded). Enforcement of Judgments, Form EJ-155, lists most of these exemptions.

Your employer will hold on to the money garnished until either: 1) 10 days go by and the creditor does not oppose your claim of exemption; or 2) the judge makes a decision on the claim of exemption. If the creditor does not oppose your claim of exemption, you employer will return the wages to you.

If the creditor opposes your claim of exemption, you will receive a Notice of Opposition to Claim of Exemption and Notice of Hearing on Claim of Exemption that will set a court date for a judge to make a decision, probably within the month. If the judge agrees with your claim of exemption, you will get your money back. If the judge agrees with the creditor, your employer will send the money to the creditor every month until your judgment is paid in full.

The court reviews all oppositions to claims of exemptions and makes a Tentative Ruling on whether to allow a claim the day before the scheduled hearing. These Tentative Rulings are posted and available for viewing after 2:00 p.m. on the day before the scheduled hearing. The tentative ruling will become the final ruling on the matter unless either party asks for the hearing to be held. If you would like the judge to hear oral arguments, you must notify the other party, the other party’s attorney, and the department clerk of your intent to appear at the hearing no later than 4 p.m. the day before the scheduled hearing. If you do not give this notice, your hearing will be taken off the schedule and the tentative ruling will become the final ruling of the court. For more information on the Court’s Tentative Ruling System and how to view the tentative rulings, see the Legal Resource Guide on our website at http://www.saclaw.org/pages/tentative-rulings.aspx.

Do you have a question for the County Law Librarian? Just email sacpress@saclaw.org. If your question is selected your answer will appear in next Thursday’s column. Even if your question isn’t selected, though, I will still respond within two weeks.

Coral Henning, Director
@coralh & @saclawlibrarian
www.saclaw.org

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August 18, 2011 | 12:08 PM

I might add that very, very few exemption cases are upheld by this court.. the most common result is ” The claim for exemption is denied”. Also, some employers are not very tolerant of employees with earnings withholding orders. All too often an employee gets so little money after the garnishement that hopelessness and apathy set in, and result in an employee’s interest in production drop. What’s really unfair is that many people are working under the table, and completely skirting the process, making someone with an above board job at a competitive disadvantage in the cruel world before them

September 1, 2011 | 12:23 PM

I beg to differ……I work for the state and i have had more than 5 different occassions where garnishments were in place..some two at a time and they WO exemption was approved. I guess its all on a case by case basis and if its child support you are right between them and IRS or FTB tax issues there is no getting around them…Im a prime candidate of tax orders…hell they may have my picture posted up! Good luck!

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