Collecting From Wages: Cooperation

faqIf the collector does not cooperate:

If the employer doesn’t return the Employer’s Return form and carry out the order:

  • You can sue the employer to recover the amount that should have been withheld, as well as any attorney’s fees you spend in this effort.
  • You can also sue an employer who interferes with a wage garnishment
  • Example: Sample Letter to Uncooperative Employer
January 29, 2013

 

Nina Hart

Downlow Corporation

1000 Industrial Street

Yolo, CA 95000

 

Re: Ben Klien v. Twila Imenez

 

Riverside Municipal Court Case No. 12895

 

Dear Ms. Hart:

 

On December 19, 2011, I sent instructions to the Yolo County sheriff to proceed with a wage garnishment in the above-referenced case. They have informed me that they served you at Downlow Corporation with an Earnings Withholding Order on January 2, 2013.

 

By law, you were required to complete and forward the Employer’s Return to the sheriff within 15 days after service, and to comply with the wage garnishment unless you filed a formal objection.

 

There are serious legal penalties for refusing to comply with a wage garnishment. You could be found liable for the amount due and owing on the judgment, and you could be subject to a separate lawsuit.

 

Rather than taking more formal steps at this time, I would appreciate it if you would immediately compete and return the Employer’ Return.

If the employer still does not cooperate and you do not want to sue, you can bring him in for a debtor’s exam.

  • Debtor’s Exam: tool which allows a creditor to ask a debtor questions to help them collect on their judgment. At a judgment debtor exam, the judgment creditor, or their attorney, is allowed to ask the judgment debtor questions about their finances under the court’s supervision while the debtor is under oath.

If the employer sends back the Employer’s return, but objects to the wage garnishment:

  • The levying officer will send you a copy and ask you for further instructions.
  • Some common objections include:
  • The debtor does not work there any more
  • The debtor’s wages are already being garnished by someone else
  • The debtor works as an independent contractor, not an employee

You can send another Application for Earnings Withholding Order to the levying officer along with a new fee if the debtor no longer works for that employer, and if you can find a current employer located in the same county as the former employer. The levying officer can use the same Writ of Execution.

If the debtor’s wages are already being garnished:

  • You have to wait for that garnishment to end before yours take effect.

If the other one lasts more that 6 months (180 days):

  • You will have to get a new Writ of Execution

If the debtor is an independent contractor, instead of a wage garnishment:

  • You can do a third-party levy or assignment

If Debtor Files Claim of Exemption

The debtor can contest your wage garnishment by filing something called a Claim of Exemption with the levying officer.

  • In this form, the debtor states that she is contesting the wage garnishment and giver her reasons for doing so.

When the officer receives the Claim of Exemption, he will mail you a copy, along with a financial statement completed by the debtor and a document called Notice of Filing of Claim of Exemption.

Getting Your Money

If the debtor does not object to your wage garnishment or you win the Claim of Exemption hearing, the employer sends the money to the levying officer who in return will disburse it to you.

  • Do Not Expect Your Money Right Away—delay is common
  • It is wise to be patient. However, you may contact the levying officer to make sure your case has not fallen through the cracks.
  • Levying officers often transmit collected funds in lump sums, rather than distributing them as they are collected

It is important to keep track of all money collected, as well any costs incurred by you.

If the employer receives an order of higher priority (for example child or spousal support), your wage garnishment will be put on hold for up to 2 years. After that it will terminate.

If your judgment is satisfied except for costs and interest, you can seek a final Earnings Withholding Order to recover those costs and interest.

If the debtor leaver her job, the order will automatically terminate after a 180-day period during which no money is withheld.

  • If the debtor changes jobs, you can file for another garnishment with the new employer.

 

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