It is an unpleasant experience to get your paycheck and find out you have been garnished for an old debt. If you find yourself in that position, you would explore your options to determine how to best protect yourself and your family. There are a number of potential strategies for challenging wage garnishment in the state of Kansas. I have listed some options below. It should be noted that the success of any defense relies upon having a factual situation that supports the defense.
Out of Compliance with State Laws
Argue that the garnishment is not in accordance with state law. Kansas law sets out specific procedures for wage garnishment, and if these procedures are not followed, the garnishment may be invalid. For example, the creditor must file an affidavit with the court, and the court must issue an order for garnishment. If these steps are not taken, the garnishment may be invalid. See K.S.A. § 60-734.
Garnishment Exceeds the Kansas Statutory Limit
Argue that the garnishment exceeds the amount allowed by law. Kansas law limits the amount that can be garnished from a person’s wages. Specifically, the garnishment cannot exceed the lesser of 25% of the debtor’s disposable earnings or the amount by which the debtor’s disposable earnings exceed 30 times the federal minimum wage. If the garnishment exceeds this amount, it may be invalid. See K.S.A. § 60-731. Note, domestic support obligation, bankruptcy orders, and tax debts have different rules that apply to those debts.
The Debt is Invalid
Argue that the garnishment is invalid because the underlying debt is invalid. If the underlying debt is invalid or unenforceable, the wage garnishment may be invalid as well. There are a number of reasons that a debt may be invalid or unenforceable, such as if the debt was discharged in bankruptcy, the statute of limitations has expired, or the creditor does not have the proper documentation to prove that the debt is owed.
File for Bankruptcy Protection
File for bankruptcy. Filing for bankruptcy may stop wage garnishment, at least temporarily. This is because of the automatic stay, which goes into effect as soon as a bankruptcy case is filed. The automatic stay prohibits creditors from taking any action to collect a debt from the debtor, unless they get permission from the bankruptcy court. See 11 U.S.C. § 362.
Overall, there are a number of potential strategies for challenging wage garnishment in the state of Kansas. It is important for debtors to be aware of their rights and to understand the various options available to them in order to make the most informed decision possible.