Wage Garnishment is a very powerful tool for either the government (most commonly the IRS), a company or an individual to collect money damages. If you are a plaintiff in a civil action, if you obtain a judgment you may be able to have the sheriff garnish the wages of the person you are suing.
If your wages have been garnished, the court has the final say on how much money can be withheld from your paycheck. Your employer is powerless to stop your wages from being withheld.
What to do if you do not believe that you owe the money?
- Go to the court clerk’s office in the county where the judgment has been entered. In the file there must be an affidavit of service. The affidavit of service will state the manner in which the lawsuit was served upon you. In New York Civil Court, after a judgment has been entered, the plaintiff is required to file a notice of entry and an affidavit of non-military service. The court protects people serving in the military from being subject to a lawsuit while on active duty abroad.
- If you have not been properly served and you have a valid defense to the underlying action, you may make a motion to vacate default. In addition, you may make an order to show cause to have the wage garnishment removed. It is not uncommon for some law firms to use process servers who “sewer serve.” I reported about this issue a few months back, where American Legal Service was accused by the Attorney General of sewer serving.
- Once in court, the judge may schedule a traverse hearing where the judge will determine whether service of process was proper.
- You also need to move for a motion to vacate default within one year of the judgment being entered.
What should you do if you want to garnish someone’s wages?
- Perform case investigation before starting your lawsuit. If the person you are suing is insolvent, it may not be worth the expense of starting an action against him or his company.
- You must obtain a court order. If you are owed money, in New York you may commence in action in either Small Claim, Civil Court, Supreme Court or Federal Court. The court where you start your lawsuit is dependent among a variety of factors.
- You must then enter judgement with the court. Be aware that in most cases you can recover costs of the action.
- Obtain the name of the employer.
- Bring the judgement to the sheriff. The sheriff will garnish the wages.
The Law Office of Frederic R. Abramson practices civil litigation in New York State. If you have any questions regarding wage garnishment, contact me at 212-233-0666.