The purpose of filing for bankruptcy is to get out from under an impossible amount of debt. In fact, when filing Chapter 7 bankruptcy, a successful ending will find the bankruptcy petitioner holding a discharge of debt that does just that. It discharges all eligible debt associated with the bankruptcy. When a debt is discharged the petitioner is no longer liable for the balance. So why do some bankruptcy petitioners find themselves with garnished wages for debts that were included in their bankruptcy?
If you declared bankruptcy, received your discharge of debt and are now facing the possibility of wage garnishment from a debt that was included in your discharge, there could be a problem. But before you assume it’s an illegal wage garnishment, remember that there are certain instances in which the wage garnishment post-bankruptcy could be legal.
Special garnishments like IRS garnishments for unpaid taxes, garnishments for a student loan or as a result of a judgment as restitution for an act of fraud cease immediately under the terms of the automatic stay, but could start back up later. Whether or not they do depends on the nature of the debt, what type of bankruptcy you file, and other details specific to your case.
The creditor involved could ask the bankruptcy court for permission to start the wage garnishment up after the case is completed.
Some types of debt survive bankruptcy. The garnishment for a debt that survives bankruptcy could continue after the bankruptcy case is completed and the automatic stay is expired.
Please note: Garnishments or withdrawals (court ordered or voluntary) for ongoing child or spousal support continue regardless of bankruptcy. Garnishment for child support or spousal support arrears also continues regardless of Chapter 7 bankruptcy. But garnishment for support arrears is stopped by Chapter 13 bankruptcy filing as long as specific conditions are met.
In rare instances, a creditor can ask the bankruptcy court directly for permission to resume a wage garnishment after it was initially stopped due to the automatic stay that follows a bankruptcy filing. In cases where the debt is not going to be discharged, the garnishment can resume once the automatic stay expires.
If your situation does not fall into any of the above categories, then your paycheck may be illegally garnished. While this type of violation is rare, it is possible. For assistance with wage garnishment or questions about how bankruptcy filing affects your wage garnishment, please get in touch with one of the experienced southern California bankruptcy attorneys at Westgate Law.