Dear Bankruptcy Adviser, I am trying to file bankruptcy because my paycheck is being garnished. Can I file a bankruptcy petition to the court myself to stop the garnishment? -- Gail
Dear Gail, Yes, you can. While you are required to know the bankruptcy laws when you file, you do not need anyone to help you file a bankruptcy petition. Many people file without legal representation.
Stopping the garnishment is not impossible or very difficult. All 50 states have similar, if not identical, procedures in wage-garnishment cases. You must follow specific steps, which can all be done the same day.
1. Complete the bankruptcy petition, and have proof you've completed the required credit-counseling course.
2. File the bankruptcy petition, and obtain a case number. You can bring the petition directly to the bankruptcy court clerk's window. Once the clerk accepts your completed paperwork, you will receive an official court stamp and case number confirming your case has been filed.
3. Get the Earnings Withholding Order, or EWO, from your employer. Often, the first time you learn of a garnishment is from your employer, though you're supposed to receive notification by mail. Your employer's payroll or the human resources department will have this document.
4. Notify the creditor garnishing your wages that you filed for bankruptcy. The EWO has the name of the creditor and any attorney or law firm that handled the case. You must fax them proof of the bankruptcy filing and the EWO, so the creditor can verify the bankruptcy filing.
Yes, the creditor has the garnishment order already, but you want to make this as easy as possible for its staff. You also want to mail them copies, via certified mail, of the stamped page showing you filed bankruptcy and the EWO. In almost all cases, the creditor will immediately confirm you filed bankruptcy and notify the county sheriff to terminate the garnishment.
5. Notify the sheriff yourself. Information about the sheriff also is on the garnishment order. The sheriff has to receive an official notification from the creditor and then will tell your employer to stop the garnishment.
Here is where you're likely to face the biggest delay in ending the garnishment. Your employer will not stop garnishing wages simply because you notify payroll or human resources you filed for bankruptcy. The employer must receive notification from the sheriff. In some areas, the sheriff's department is understaffed, overworked or both. Getting the sheriff's office to process the request can take days, weeks or even months. The garnishment will continue until the sheriff notifies your employer.
6. Let your payroll department or service know you filed. Put it on notice that it ought to be receiving something from the sheriff soon.
Now, you may want to know whether you can recover any of the money garnished prior to filing. Unfortunately, I cannot answer that question. Each state has different amounts of money you can protect when you file for bankruptcy. In some states, you might not be able to protect those garnished funds. So, even though you can stop future garnishments, you might not be able to recover the funds already taken.
The person assigned to your bankruptcy case, called a trustee, will request to receive any garnished funds that are beyond your reach. The trustee then will distribute a portion of those funds to your other creditors.
Any money taken after your case has been filed is protected. In most cases, the sheriff will mail back to your employer any funds received following notification of the bankruptcy and the termination of the garnishment order. Your employer will then issue you those funds on a future paycheck.