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|Can My Wages Be Garnished without A Court Order?||
Last updated: July 2010
The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette.
Can my wages be garnished without a court case? My employer is garnishing my wages for a loan I took out. I got behind on the payments, but I was never taken to court. Can I stop the deductions?
For repayment of a regular loan, the only way your wages can be taken without a court case is by a wage assignment. That is something you sign when you take out the loan, giving your permission to garnish your wages if you don't pay. Lucky for you, they are "terminable at will," which means it stops if you want it to.
A "wage assignment" is different from a "wage garnishment". A wage assignment is something that you agree to. A regular wage garnishment is not voluntary; the law permits it once a court judgment is entered against you. Because a wage assignment is voluntary, it can be enforced without a court case.
Illinois law says a wage assignment must be a paper that is completely separate from the loan itself, and clearly labeled "wage assignment." You must be at least 40 days behind on your loan before a wage assignment can go to your employer. The creditor must mail you and your employer a notice saying they'll start garnishing your wages in 20 days if you don't catch up on your loan.
That notice has to be sent to you by certified or regular mail, so you should have gotten advance warning that your wages were going to be garnished.
The amount that can be taken from a wage assignment is the lesser of 15% of your gross pay, or the amount of your net pay over 45 x the federal or state minimum hourly wage, whichever is greater. That means that you can only have a wage assignment if you take home over $371.25 per week.
In addition to the State law, wage assignments are also covered by Federal regulations. Those regulations give you a big out. They say that a wage assignment is illegal unless "the assignment by its terms is revocable at the will of the debtor." That means you can stop it whenever you want, no questions asked. If that's what you want, you should tell both your employer, and whoever you owe money to, in writing. The regulations don't say a request to stop a wage assignment has to be written, but putting it in writing is always best. Click on the title below to learn more.
But remember, you will still owe the money, and the lender can still use other methods to collect it. That probably means a court case, which may wind up with an involuntary wage garnishment. You can’t revoke a wage garnishment that’s based on a court judgment.
A wage assignment is the only way your wages can be garnished without a court order for a "regular" debt. But two other kinds of debts, child support and student loans, can also result in garnishments without a court case. If it's not one of those three types of debts, though, a wage garnishment requires a court case.
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