Home Articles FAQ Site Map
When your judgment debtor has a conventional job, wage levies (called wage garnishments in some states) can be used to recover a judgment. As with most other judgment enforcement tools, wage levies cost money and do not always work.
Wage levies are one of the top four judgment recovery tools. Liens, bank levies, and Sheriff auction sales of the judgment debtor's property; are other popular judgment recovery tools.
Ideally, wage levies would always work, however in the real world, they often do not work. The first thing to check is, are wage levies allowed in your state? Most states allow wage levies. The first step in a wage levy, is finding out where your judgment debtor is employed.
A change in California laws that affects the entire state began on 1/1/2014:
Forms WG-006 and EJ-165 must be served with EWOs. Forms EJ-160 and EJ-165 must be served with Levies.
For EWO's (Earning Withholding Orders) see CCP 706.103(a)(4) and (a)(5) for Sheriff's use, and 706.108(c)(4) and (c)(5) for RPSs (Registered Process Servers), and 706.104 for Employers. For Bank Levies, see CCP 700.010(a)(3)
In California, Writs of Execution must always be issued by the court in which the judgment was entered. They must be directed to the Sheriff of the county in which the asset is being garnished. (See CCP 699.510 (a)). Service of an EWO (Earnings Withholding Order) is treated like service of a Summons (See CCP 706.101(a)). EWOs can be served by mail (first class mail is okay and certified mail is not necessary). However, if the Employer's Return is not sent to the Sheriff within 15 days, service must then be effected by personal service (See CCP 706.101). Costs for a registered process server are recoverable, see CCP 706.108.
What if your judgment debtor lives (and gets paid) in one state, however their employer is based in another state? Usually, you will have to domesticate your judgment to the state where the employer is based. Another possible remedy might be the long arm statues laws in the employer's state, which may allow a creditor to reach a judgment debtor's wages from another jurisdiction. (See the PDF at http://euro.ecom.cmu.edu/program/law/08-732/Jurisdiction/LongArmSurvey.pdf)
The next challenge is, is your judgment debtor self-employed? If so, a wage levy probably will not work if they pay themselves with bonuses, loans, as an independent contractor, or with some other shenanigans. One might need to perform judgment debtor examinations, to find where their money comes and goes. One might have to also ask the court to approve an assignment order. Some enforcers have a process server serve both a wage garnishment and an assignment order at the same time, that usually covers most (but not all) debtor shenanigans.
The next complication (for regular working debtors) might be, is there already an existing wage levy in place? Usually, only one wage levy is allowed on an employee at a time. If you find a levy is already in place, you have to wait (sometimes a long time) for your turn, until the other levies are done. Sometimes other (VIP) creditors, for example child support or government debt levies, outrank regular judgment creditors; and get first rights to attach a judgment debtor's wages. Most child support judgments never expire.
Possible ways to check for pre-existing levies are to see if there is a recent writ at the courthouse, or perhaps your local Sheriff might be able to tell you. One more option is to call the employer and tell them exactly the truth, you are a creditor and intend to levy the debtor's wages, and ask them to verify the exact address and person your need to direct it to; and if there is already an existing levy in place. If all else fails, try your wage levy, if there is another levy in front of yours, or with more priority, you will be notified.
Even if the address of the Agent for Service of Process is listed wrong on the SOS website, serve the employer corporation at the address for the agent for service of process. It is the easiest way, and it canot be challenged.
What if your debtor works for the State Of California, serving them is slow, as per the State Payroll Procedures Manual. Article 8, Section 300 will answer a judgment owner's questions, and page 76 has a handy chart on the order of priority on the type of levy paid. Sadly, an ordinary money judgment falls into the 10th spot out of 11 different types of levies. See www.sco.ca.gov/ppsd_ppm.html.
Another consideration is usually, only 25% or less (especially if the judgment debtor does not earn very much) of an employee's wages may be levied. Sometimes a judgment debtor quits their job after your wage garnishment is put into place. That means you have to again find out where they work, and start over, paying the Sheriff and the court for each levy attempt.
Another problem can be if the employer and employee are friends, they may lie together until the end; and make it very hard to collect. I have heard several cases where an employer "laid off" an employee upon reciept of the garnishment, so they could reply to the sheriff that the debtor is no longer employed, only to rehire them back a few days later. If they are playing such games, then a bank levy might be better to try first, then a wage levy, examinations, and as a last resort; on assignment order. A third-party examination on the employer to find out exactly how your debtor is paid. You can subpoena the employers financials and the debtor's bank records and match things up. When the employer is hauled into court and sworn in, they may well take it very seriously
To begin a wage levy, you buy a writ of execution (or some other appropriate) form from your court. Then you pay the Sheriff, and fill out their paperwork. Depending on where you live, you might also have to hire a process server, to serve the wage levy on the employer.
The Sheriff or a process server, serves the levy papers on the employer, and the employer withholds wages from their judgment debtor employee; and eventually you will probably get a series of checks until you are paid. If the employer is in a different state, call the Sheriff and ask them how they want to proceed. Some will mail the garnishment to the out of state office and some have other ways of dealing with these issues.
If you ever get a notice from a bankruptcy court, that your debtor has filed for bankruptcy protection, be sure to quickly notify the Sheriff to immediately stop your levy, and stop all your collection efforts.
After a levy is served, most judgment debtors will be mad. Some debtors may be embarrassed, some will go bankrupt, and some will want to settle or pay you, to get you to call off your levy. Of course, some will just let the wage levy continue until you are repaid in full, and that is a good outcome.
It appears that in 2014, the laws changed on what a process server must do, to serve to effect a wage garnishment. The revised California laws are listed below. Not all Sheriffs know these new changed (CCP 706.108) laws as of the time of the first revision of this article:
(a) If a writ of execution has been issued to the county where the judgment debtor's employer is to be served and the time specified in subdivision.
(b) of Section 699.530 for levy on property under the writ has not expired, a judgment creditor may deliver an application for issuance of an earnings withholding order to a registered process server who may then issue an earnings withholding order. If the registered process server has issued the earnings withholding order, the registered process server, before serving the earnings withholding order, shall deposit with the levying officer a copy of the writ of execution, the application for issuance of an earnings withholding order, and a copy of the earnings withholding order, and shall pay the fee provided by Section 26750 of the Government Code.
(c) A registered process server may serve an earnings withholding order on an employer whether the earnings withholding order was issued by a levying officer or by a registered process server, but no earnings withholding order may be served after the time specified in subdivision (b) of Section 699.530. In performing this function, the registered process server shall serve upon the designated employer all of the following: (1) The original and one copy of the earnings withholding order. (2) The form for the employer's return. (3) The notice to the employee of the earnings withholding order. (4) A copy of the form that the judgment debtor may use to make a claim of exemption. (5) A copy of the form the judgment debtor may use to provide a financial statement. (6) A copy of the employer's instructions referred to in Section 706.127, except as otherwise prescribed in rules adopted by the Judicial Council. (d) Within five court days after service under this section, all of the following shall be filed with the levying officer: (1) The writ of execution, if it is not already in the hands of the levying officer. (2) Proof of service on the employer of the papers listed in subdivision (c). (3) Instructions in writing, as required by the provisions of Section 687.010. (e) If the fee provided by Section 26750 of the Government Code has been paid, the levying officer shall perform all other duties required by this chapter as if the levying officer had served the earnings withholding order. If the registered process server does not comply with subdivisions (b), where applicable, and (d), the service of the earnings withholding order is ineffective and the levying officer is not required to perform any duties under the order and may terminate the order and may release any withheld earnings to the judgment debtor. (f) The fee for services of a registered process server under this section shall be allowed as a recoverable cost pursuant to Section 1033.5.
Can you do a wage garnishment against someone employed by a county's social services department who doing in home support services? Probably yes, because most of the time those workers get sometimes 1099 forms and usually W2 forms, from the person paying them.
For in-home support services, they are often W2 employees, the income used to pay the W2 comes from the state.
Social workers often do not earn a lot. The amount of money paid to a Care Provider is minimal (at the time of the first revision of this article: $9.85/hour by law) and is based on the client's perceived "need" as determined by a Social Worker. "Need" is calculated to the minute. If someone is working as a Caregiver for multiple clients, perhaps they are making a modest full-time salary (of e.g., $22,064/year); however this is not likely. Most working as Care Providers for a family member get income that is extremely small; and I would imagine could easily be considered exempt even before a Claim Of Exemption is filed.
As an example, the Social Worker may determine that a client needs 18 minutes a month for assistance with bowel/bladder care and/or 35 minutes a month bathing/grooming, etc. Unless the judgment debtor's mother is a complete invalid, chances are your judgment debtor is only receiving a very small amount of money each month, and is not being paid for the majority of care they are providing their mother. Mandatory Union Dues for the United Domestic Workers of America (UDWA) are also deducted each month.
Many counties and states, handles payroll for Caregivers differently. For example, in San Diego, California. The Public Authority at (866)351-7722 might have contact information for you for who handles such matters in your area.
Of course, you should look for any other source of income for your judgment debtor.
: Are religious organizations exempt when it pertains to bank levies? I was wondering if a religious organizations bank account was exempt when it comes to bank levies? Has anyone had any experience with something like that?
: Yes and no. Yes, you can levy on a church's bank account. No, it is not exempt because there is no code that gives them that privilege. In California, take look at CCP 704.010.
If your debtor is an AKA of an organization, then I would say they do not have any exemptions to rely on, because they are not a natural person (See CCP 703.020(a)). If the organization is not the judgment, then a third-party claim may come into play in a bank levy upon their property. (See: CCP 720.110)
Also, look at Corporation Code section 5000, for any information regarding assets of the non-profit.
Go Back To Articles JudgmentBuy.com Home Page
|Contact: Mark Shapiro at Mark@GoGuys.com Fax 719-396-7035|
© Copyright 2001-2017 . Entire site is protected by copyright laws. All rights reserved.