Judgments are often the result of consumers leaving debts unpaid. If a creditor cannot collect any other way, it may sue the consumer for the full amount he owes--plus court fees. Should the creditor win the lawsuit, a judgment is levied against the debtor. Not only do judgments damage credit ratings, they also often give the creditor the right to seek a bank account or wage garnishment.
How a Civil Judgment Leads to Garnishment
After the court’s decision is recorded, the creditor becomes a judgment creditor. Although any individual or business can claim that a consumer owes money, a judgment creditor often has the right to force a debtor to pay the judgment against his will. One way of doing this is through court-ordered garnishment.
Judgment creditors can request a Writ of Execution from the court that originally awarded the judgment. If the judgment creditor knows where the debtor works or banks, it can have the local sheriff’s office officially serve the Writ of Execution upon the bank or employer. The bank or employer then must garnish funds belonging to the debtor and remit those funds to the judgment creditor.
See: The Wage Garnishment Process and Collections
Restrictions On Judgment Creditors Collecting Through Garnishment
Not all states allow garnishment for unpaid debt. In some states, garnishment is only an option if the creditor in question is the federal government. The following states have laws that strictly prohibit garnishment attempts by private creditors:
- North Carolina
- South Carolina
- Pennsylvania
- Texas
It should be noted that consumers living in Florida that are considered “head of household” must agree in writing to a wage garnishment by a private creditor before a bank or employer will honor a Writ of Execution.
See: Government Garnishment Laws
Legal Flaws in Civil Judgments
For a civil judgment to be valid, the letter of the law must be followed precisely. Should a creditor fail to correctly follow every procedure mandated in the debtor’s state, it is entirely possible that a debtor could have the original judgment stricken from the court record. Common reasons consumers can use to vacate judgments are:
- The debtor was never notified of the lawsuit. Regardless of which state a lawsuit is filed in, the plaintiff must notify the defendant by sending him a summons. State laws determine how a summons must be delivered to be legally binding. If a defendant never received a summons, or received an improper summons, a judgment was likely issued by default and can be considered invalid by the court.
- The lawsuit was filed in the wrong venue. Creditors suing over an unpaid debt must file the lawsuit in the debtor’s county of residence or, in some cases, in the county where the individual originally incurred the debt. Should a creditor sue at the wrong courthouse, the debtor can have the civil judgment vacated on a technicality.
- The debt was out of statute. Creditors have a limited amount of time to file a lawsuit over a delinquent debt before the debt can no longer be legally enforced and becomes a “time-barred debt.” Each state has a different statute of limitations. Should a judgment be issued on a time-barred debt, an individual may attempt to vacate the judgment.
See: The Statute of Limitations on Debt Collection
File a Motion to Vacate With the Court That Issued the Civil Judgment
A consumer with a valid reason to ask the court to dismiss a judgment can file a Motion to Vacate with the court. He must file his motion with the same court that originally issued the judgment. Each state’s rules of procedure differ, but a typical Motion to Vacate will outline a valid reason that the civil judgment was issued in error and request a secondary hearing.
It is the responsibility of the consumer to notify the former plaintiff of the new hearing. If the plaintiff fails to attend, the consumer wins by default. If the plaintiff does attend, the debtor needs to be prepared to state his case for why he does not owe the debt in question. If the creditor cannot prove the consumer’s obligation to the debt, the judge will then rule on whether or not to vacate the judgment.
Once a judge vacates a judgment, the court will order the creditor to immediately stop garnishing the consumer’s wages and bank accounts. The individual may then sue the creditor for the return of all funds garnished under the original judgment. Consumers interested in overturning a judgment and garnishment order should seek the guidance of an attorney familiar with the laws of civil procedure in their state.
Sources:
Michigan State Court Administrative Office: Garnishment to Pay for a Judgment
County of Los Angeles Department of Consumer Affairs: Motion to Vacate
Candice Edwards - Candice Gillingwater is a credit specialist and consumer advocate currently living in Georgia. Her goal is to educate the public about ...
