You have succeeded in securing a monetary judgment against the defendant and are now ready to proceed to the next stage, involving the difficult process of collecting the judgment. There are several procedures outlined in California’s statutes for collecting the judgment. This article outlines the steps necessary to garnish the judgment debtor’s wages as a means to collect on the judgment.
Prepare/File/Serve the Writ of Execution and Related Papers
The first step in the post-judgment process is to prepare and file a Writ of Execution. The Writ is basically a written order that tells the debtor’s employer (the garnishee) that they must enforce the judgment by keeping wages from the debtor’s paycheck. The court will issue the writ and the levying officer will serve it on the employer along with an earnings withholding order, financial statement and claim of exemption form, and employee instructions. The writ is valid for 180 days. The employer must return an employer’s response form within 15 days. If they don’t respond, they can be held liable for the employee’s debt. The debtor will get a copy of the Earnings Withholding Order from his or her employer.
The employer must serve the judgment debtor/employee with the garnishment papers within 10 days. Garnishment begins the first payday after 10 days from the date the employer was served.
Review Any Response by the Judgment Debtor
A judgment debtor can object and ask for exemptions within 10 days of being served or the wage garnishment will begin. Objections the debtor can make include that a claimed exemption exists, improper service, that debt was discharged in bankruptcy, or that a hardship exists. In California, debtors can object and claim an exemption if they need the money to support others or for necessary living expenses.
Attend Court hearing on Debtor’s Objections and Exemptions.
If the debtor files objections or claimed exemptions, there will be a court hearing to review the judgment debtor’s contentions. The court’s decision after this hearing determines whether wages will be garnished for the creditor’s requested amount, garnished for less based on the debtor’s exemptions and hardship, or not garnished at all.
How Much Can Be Taken by Wage Garnishment?
The debtor’s pay can’t be garnished for more than what is owed, and there are limits to how much a creditor can take. The formula starts with the debtor’s disposable wages, i.e., the debtor’s wages after legally mandated deductions, such as taxes, Social Security, Medicare, and state unemployment insurance tax.
The debtor’s wages can only be garnished for whichever is less:
- 25% of disposable earnings for a week, or
- 50% of the amount that weekly earnings exceed 40 times the state or local minimum wage. If the debtor’s weekly earnings are less than $560 (40 x $14 state minimum wage), your wages can’t be garnished at all.
For example, say the debtor’s disposable income is $800 per week.
- 25% of $800 is $200.
- 40 times $15.50 (California’s minimum wage) is $620. $800 minus $620 is 180. 50% of 180 is $90.
Since $90 is less than $200, $90 is the maximum amount a creditor can garnish from the debtor’s weekly disposable income.
Satisfaction of Writ of Execution
If you prevail in the garnishment action, then you can collect garnished wages up to the full amount of the judgment. You are responsible for notifying the court when the judgment has been satisfied by filing an Acknowledgment of Satisfaction of Judgment. You must also notify the sheriff to stop levying the debtor’s wages.
Lynx Legal Service handles wage garnishment actions. We can prepare, file and serve all the paperwork required to garnish a debtor’s wages for a fraction of the cost an attorney would charge. Please call 888-441-2355 if you would like to start a case. You can also email us at firstname.lastname@example.org. We are standing by ready to assist in any way we can.