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When a creditor obtains a court judgment against a debtor, wage garnishment can be soon to follow. Most persons subjected to wage garnishment will consult a lawyer to see if it can be stopped, and many of those will file either Chapter 7 or Chapter 13 bankruptcy to stop the wage garnishment. While stopping wage garnishments through an immediate bankruptcy filing is often a good idea, care must be taken to avoid filing bankruptcy too soon.
This might sound a bit strange — after all, if one’s wages are being garnished, and if filing bankruptcy will put an end to this hemorrhage of dollars from the debtor’s pocket, shouldn’t the bankruptcy lawyer be asked to sprint to the courthouse with the bankruptcy petition? Wouldn’t a speedy bankruptcy filing bring the paycheck right back to where it should be? Yes, but often there is more to this question than meets the eye.
Section 522(h) and section 547 of the Bankruptcy Code allows a debtor to recover money involuntarily taken from him or her in the ninety days preceding the bankruptcy filing. These sections apply to wage garnishment, and they are often used to recover money garnished before a bankruptcy filing. Of course, this results in a happy bankruptcy debtor, who has just discovered that he or she actually made money, in a sense, by filing bankruptcy and recovering the garnished funds.
However, there is a catch: section 522(h) and section 547 can only be used in this way if $600.00 or more was garnished before the bankruptcy filing. To put it another way, if $600.00 or more was garnished before the bankruptcy was filed, then all the funds can be recovered by the debtor; if less than $600.00 was garnished before the bankruptcy was filed, then the creditor gets to keep the money.
As you can now see, this is where the bankruptcy debtor needs to get the timing right. It might be a mistake to file the bankruptcy right now if, for example, $550.00 has been garnished from the paycheck, because then the debtor will be unable to get the money back. Often, in this example, if the debtor can stand to wait until one more paycheck is garnished, then the total garnished before bankruptcy will exceed $600.00. This will often allow the debtor to recover every penny of the garnished funds.
Compare the advantages and disadvantages of bankruptcy.
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