Bankruptcy Wont Stop Child Support Payments
Filing for bankruptcy prevents most creditors from collecting debts from you. Once the automatic stay goes into effect, a creditor must get permission from the court before continuing or initiating a collection action. But the automatic stay doesnt apply to most child support procedures, including:
- legal proceedings to establish or modify a child support order
- collection of child support from property not part of the bankruptcy estate , or
- income withholdings to pay child support under an administrative or court order or statute.
Other types of lawsuits you cant stop with bankruptcy include criminal actions and suits that should move forward in the interest of justice. For instance, because the bankruptcy court needs a fraud trial judgment before declaring a debt nondischargeable due to fraud, the court would likely allow an ongoing fraud trial to proceed to judgment.
Learn more about when a court will lift the automatic stay.
Federal Loans And Hardship
Your student loan holder may choose not to oppose your petition to have your loans discharged in bankruptcy court if it believes your circumstances constitute undue hardship. Even if your loan holder doesn’t, it may still choose not to oppose your petition after evaluating the cost of undue hardship litigation.
For federal loans, the Department of Education allows a loan holder to accept an undue hardship claim if the costs to pursue the litigation exceed one-third of the total amount owed on the loan . Private student lenders are likely to apply similar logic.
Private Loan Modification Or Settlement
Your options to reduce private loan payments or get out of default vary greatly based on the lender. Communicate directly with your private lender or servicer to explore loan modification programs if you cant afford your payments long-term.
If youre behind on your loans, you could consider reaching a settlement agreement with the lender or collection agency. At which point, you would pay a lump sum settlement thats less than your total outstanding balance. But you may have to pay taxes on this amount, and it could be unaffordable.
If you can, consult a tax professional or lawyer with student loan expertise if youre in communication with a collection agency about a settlement.
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Wage Garnishment Lawyer In Las Vegas
In Nevada, creditors have the right to garnish the wages of those who fall behind on unpaid bills. This is per the debt collection process in Nevada. If you owe a person or a bank or company money, they can bring a lawsuit against you and obtain a court judgment against you.
Once a judgement in obtained, should you refuse to pay the judgment, the judgment creditor can then start the process of garnishing your wages. In Nevada, there are few ways to stop a garnishment. One method of stopping a garnishment is that you can argue that your income is exempt or that you will suffer extreme hardship. These arguments are occasionally successful. As a last resort, you may also file for bankruptcy which immediately stops the wage garnishment in place against you automatically.
Hence, creditors must get a judgement against an individual before getting a garnishment. Unfortunately, getting your wages garnished is an increased burden on people already in a tough financial situation.
Nevada Wage Garnishment Attorney Erik Severino has helped thousands of people in Las Vegas. As well as, throughout Nevada to stop wage garnishments and relieve debt through filing chapter 7 or chapter 13 bankruptcy. Eric and the Vegas bankruptcy team commit to working with you to obtain debt relief and stop garnishments. Keep in mind, if a creditor has a judgement against you or you are facing a wage garnishment, call us at 370-0155.
Serving A Garnishing Order
When an order for wage garnishment in Canada has been obtained by your creditor, it must be served on your employer or on the party they are trying to seize funds from.
A garnishment is not limited just to your employer it can be served on your bank in an effort to seize money in a bank account. Regardless of the party, once they receive the garnishment order they are legally bound to follow it, unless the provincial legislation provides otherwise.
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Option : File Bankruptcy
Bankruptcy is a legal process that helps you get relief from some or all your debt. This does not always include student debt, so you have to strategically declare bankruptcy if youâre trying to eliminate your student loans and stop wage garnishment.
Filing a chapter 7 or chapter 13 bankruptcy stops wage garnishment the day your bankruptcy case is filed. However, bankruptcy does not get your loans out of default. Nor does filing bankruptcy, by itself, allow you to discharge your student loan debt.
Almost anyone can file bankruptcy, but it will ruin your credit report for 7 years. Donât take this path lightly. However, it may prove to be your best option in some cases.
To get rid of your student loan debt in bankruptcy, youâll need to file a student loan adversary proceeding and prove undue hardship. If that sounds complicated, donât panic. Talk to a student loan lawyer.
Benefits of filing bankruptcy: This can help alleviate student loan debt for people who cannot afford a settlement, those with a disability that prevents them from working full-time, or individuals who canât get their professional license due to student loan debt.
How Student Loan Bankruptcy Works
If youre considering student loan bankruptcy, falling behind on your payments will have had a major impact on your life. Perhaps your wages have been garnished because a lender took out a judgment against you. The federal government may have kept your tax refund and applied it to your federal student loans because they were delinquent or in default.
Your student debt is probably just one component of the financial challenges you are currently facing. In fact, if student debt is your only problem, you are unlikely to succeed in getting it discharged through bankruptcy. Filing for student loan bankruptcy is not easy and does not guarantee that you will walk away debt-free. But if your credit is shot, bankruptcy could be a faster path to financial health than continuing to struggle to pay your debts.
There is no special type of bankruptcy called “student loan bankruptcy.” Succeeding in having student loans discharged through bankruptcy involves filing Chapter 7 or Chapter 13 and then taking an additional step, which is filing an “adversary proceeding,” or AP. The AP must be filed to have your student loans considered for discharge.
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Argue The Student Loan Wage Garnishment Causes Financial Hardship
Youre basically living check to check.
Your budget doesnt allow for shortages.
But when that garnishment hit, thats exactly what happened: Shortages.
Heres what you do:
Youll make this argument when you request a hearing using the hearing request form.
In that form, state two things:
If you dont argue both of those things, you must wait until your garnishment order has been outstanding for 6 months before you can request a hearing.
Financial hardship definition for student loans
Financial hardship means you cant meet the basic living expenses for goods and services necessary for the survival of you and your dependents. The hearing officer will compare your expenses against the amounts the IRS says should be spent for basic living expenses by families of the same size and similar income to yours. If the expenses you claim are greater than the IRS amounts, you must prove the amount you claim is reasonable and necessary.
Related: The IRS National Standards for Allowable Living Expenses for 2016
Examples of substantial change in financial situation
The examples of whats considered a substantially changed financial situation are pretty limited. Basically, your financial situation has substantially changed if after you got notice of the garnishment you suffered an:
- injury
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Wage Garnishment And Bankruptcy
Wage garnishment occurs when a court issues an order that requires your employer to withhold a portion of your paycheck and send it directly to a person or entity to which you owe money. Generally, garnishment lasts until a particular debt is fully paid off. The debts for which a wage garnishment order may be entered include child support, student loans, taxes, and any debts that have been the subject of a collections lawsuit resulting in a judgment against you and a wage garnishment order. Except in the cases of child support, student loans, and taxes, a creditor cannot garnish your wages without first suing you, winning, and obtaining a court order.
If a creditor wins a lawsuit, and a money judgment is entered on its behalf, the creditor can garnish your wages by giving a copy of the court order to the local sheriff, who then sends it to your employer. Federal and state regulations govern how much of your paycheck may be garnished. Under federal law, the lower of up to 25% of your disposable earnings or the amount by which your weekly income exceeds 30 times the minimum wage may be garnished. However, in some states, a lower percentage limit is set for the amount of your wages that can be garnished. Different rules apply to child support, student loans, and taxes.
You Can Stop Wage Garnishment Before It Can Start
Before the creditor or collection agency can get a garnishment order, they have to get a judgment. In other words, they have to win the lawsuit. Now, it often doesnât make sense to fight the lawsuit , but that doesnât mean that you should ignore the lawsuit.
Consider signing up for a free session with a nonprofit near you as well. After doing a free evaluation of your financial situation, theyâll be able to make some recommendations on how to avoid a garnishment. They may even be able to help you put together a repayment plan to offer to the bank thatâs suing you.
If you do it will just speed up the inevitable. If the creditor doesnât hear from you at all, theyâre able to ask the court to grant them a judgment against you by default. Thatâs called a default judgment and itâs a bit like losing a softball match by forfeiture because your team didnât show up.
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How To Stop A Creditor From Garnishing Wages
It makes no difference if your creditor is threatening to garnish your wages, has set a date to make a court application, or served a garnishment order on your employer. You still have options.
The ways you can put a stop to a garnishee are:
If a creditor is about to garnish your wages, or if your wages have already been garnished, both a personal bankruptcy and a consumer proposal can put an immediate stop to this garnishee.
They both have an immediate stay of proceedingsthis is legal protection that is put in place the moment the proposal or bankruptcy documents are filed with the government . The stay of proceedings has the effect of immediately stopping to the garnishment.
However, timing is key, the sooner the court protection is in place, the sooner you will be able to ensure the garnishee wont continue.
How To Use Chapter 13 To Manage Student Loan Payments
Even if you can’t use bankruptcy to eliminate your student loans, you might be able use Chapter 13 bankruptcy to reduce the amount you pay on your student loans for the length of your bankruptcy case, usually 36 to 60 months.
In Chapter 13 case, you get to keep your property. In return, you must devote your disposable income to the full or partial repayment of your unsecured debts over the life of your plan. In addition to unsecured debts, you can pay some secured debts like car payments, through the Chapter 13 plan, too.
You do this by making a monthly payment to your Chapter 13 trustee. The amount of this payment depends on the property you own, your income, and your reasonable and necessary expenses. Most filers must pay their “disposable income” toward unsecured debt for the repayment period. The trustee distributes this payment among your unsecured creditors, on a pro rata basis.
Example
Suppose you make $3,000 per month. Your costs for rent, car payment, utilities, food, and other expenses total $2,700 per month. That leaves a disposable income of $300. If you were not in Chapter 13, you would also be making payments of $400 in student loans and another $300 in credit card minimums and medical bills. You would be in the hole each month by at least $400.
Calculating your Chapter 13 plan payment is more complicated than the above example. Talk to a bankruptcy attorney to find out how much your Chapter 13 plan payment would be.
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When Can A Creditor Garnish Your Wages In Texas
Federal law places limits on wage garnishment amounts taken from your paycheck. The idea is that you should have enough left to pay for living expenses.
In Texas, most creditors arent allowed to garnish your wages. However, exceptions exist for:
- unpaid income taxes
- court-ordered alimony and child support, and
- defaulted student loans.
Also, keep in mind that creditors might still be able to levy or seize your other assets, such as funds in bank accounts, even if they cant garnish your wages. Further, if you work for an out-of-state company or receive your wages from a source outside of Texas, a creditor might be able to domesticate its judgment in Texas and still garnish your wages.
How To Prove Undue Hardship For Student Loans
To discharge student loans via bankruptcy, you will have to prove they pose an undue hardship during your adversary proceeding.
The U.S. Bankruptcy Code doesnt define undue hardship, so bankruptcy courts have different interpretations for its meaning. Most use whats known as the Brunner test to determine whether bankruptcy filers student loans meet the undue hardship standard.
You must prove that you meet all three parts of the Brunner test to get your college debt discharged:
1. Making student loan payments would keep you from maintaining a minimal standard of living based on your current income and expenses. To meet this, you generally must have bare-bones expenses and must have done everything in your power to increase your income, without success.
2. Additional circumstances make it very likely that your financial situation will persist for a significant portion of your remaining loan period. Among other things, you may be able to successfully meet this if you have a serious mental or physical disability, received a poor-quality education or have maximized your income potential in your field.
3. Youve made “good faith” efforts to repay your loans. You may meet this prong by making some loan payments, attempting to negotiate a payment plan and working to slash unnecessary expenses and increase income.
Different jurisdictions and judges have different interpretations of these standards so your outcome will depend on your location and the judge you get.
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Negotiate The Terms Of Repayment
It is often possible to negotiate the amount of debt you repay, and that holds true with student loans, too. If you reach an agreement with the U.S. Department of Education, you must send the first payment within 30 days of receiving the garnishment notice. After doing that, the agreement is in effect and the wage garnishment is stopped.
Stop Student Loan Collections To Discharge Or Deal With The Loan
Filing Chapter 7 stops a student loan garnishment and other collection activities. Then use undue hardship or focus on the student loan.
Our last blog post was about a Chapter 7 bankruptcy stopping a tax garnishment only temporarily. In that situation this was OK because it gave time to set up a payment program with the IRS/state. With the bankruptcy discharging all or most other debts, the taxpayer could afford a reasonable monthly payment to pay off the tax debt over time.
Today we deal with a somewhat similar situation. Assume you owe a student loan that you dont have the cash flow to make payments on. Heres how this situation can be greatly helped through a Chapter 7 filing.
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Using Wage Garnishments To Collect Debts In Florida
Wage garnishments are a collection tool used by creditors in Florida to collect bad debts. Section 77.0305 of Chapter 77 of the Florida Statues governs wage garnishments.
The first step in the wage garnishment process in Florida is for the creditor to file for a judgment against you. A creditor files a debt collection lawsuit with the court and serves you with a copy of the papers. If you do not respond to the lawsuit before the deadline, the creditor can obtain a default judgment from the court for the money you owe to the creditor.
After the court grants the judgment, a creditor must file a Motion for a Continuing Wage Garnishment order. Because this motion is filed ex-parte with the court, you will not receive notice that the creditor has applied for a wage garnishment. Once the judge grants the creditor’s motion, the Continuing Writ of Garnishment is served on your employer. Therefore, your first notice that your wages are being garnished may be when you see the deduction on your paystub. Wage garnishment orders can require your employer to freeze up to 25 percent of your pay to be forwarded to the creditor.
