The Fair Debt Collection Practices Act (FDCPA) makes it illegal for a debt collector to garnish a paycheck or bank account without following proper garnishment procedure. Cases of wrongful garnishment may lead to the offender being required to pay thousands of dollars in damages and attorney fees to the wrongfully garnished individual. Here are some scenarios that a creditor might take leading to wrongful garnishment.
A Settled Debt
If the consumer reaches a settlement agreement with the creditor, and the creditor proceeds to nonetheless garnish the consumer, this is likely a violation of the FDCPA. A settlement would typically include a provision stating that as long as the consumer fulfills the settlement agreement, the creditor will not take any additional collection action against the consumer. In these types of settlements, further wage garnishment can constitute an FDCPA violation.
Vacated Judgement
Often times, a garnishment will take place after a court judgement. If the court judgement is later vacated, or voided, then the debt collector subsequently loses the ability to garnish the consumer. Any garnishment action taken after the vacated judgement is likely an FDCPA violation.
Pre-judgement Garnishment
In the state of Minnesota, a collector is allowed to garnish someone’s wages or bank account prior to receiving a court judgement. In order to do this, the debt collector must adhere to the following procedure:
- The collector serves the consumer with a debt collection lawsuit.
- If the consumer fails to respond to the lawsuit within twenty days, the debt collector then sends the consumer a “Notice of Intent to Garnish.”
- If the consumer fails to respond to the “Notice of Intent to Garnish” within twenty five days, the collector may proceed with a garnishment.
If any of these steps are missed, then the collector has likely committed a wrongful garnishment and thus violated the FDCPA. For example, if the creditor garnishes without sending the “Notice of Intent to Garnish,” or garnishes despite the fact that the consumer responded to the lawsuit within twenty days, they would be in violation of the FDCPA.
Exempt Funds Garnishment
Under Minnesota law, specific types of funds are exempt from garnishment. For example, forms of government assistance including disability payments and social security payments are protected by Minnesota law. If a collector knowingly garnishes a bank account that exclusively contains these funds, this may be in violation of the FDCPA.
How We Can Help
Tarshish Cody PLC defends consumers from wrongful garnishment and our attorneys are experienced in protecting your legal rights. The attorneys at Tarshish Cody PLC have filed many lawsuits against debt collectors who fail to follow proper garnishment procedure and are in violation of the FDCPA. Our clients have been awarded millions of dollars via FDCPA lawsuits. If you are being wrongfully garnished, the debt collector may be required to pay you thousands of dollars in damages plus your attorney fees.
Please call 952-295-3935 now or fill out our Free Case Evaluation Form and one of our attorneys handling Wrongful Garnishment can evaluate your case.
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