Once a creditor receives a judgment against a debtor, it can pursue garnishment of a debtor's bank account or up to 25 percent of his weekly disposable wages by serving the debtor and his employer with a writ of garnishment. To stop a garnishment in its tracks, a debtor can file a motion to quash a writ of garnishment, but must have a justifiable reason for doing so in order for the motion to be granted.
Purpose of Writ of Garnishment
A motion to quash asks a court to invalidate a previous ruling. For writs of garnishment, a motion to quash would state that the order to issue a garnishment was improper. The debtor can file a motion to quash a writ of garnishment when he receives notice of a garnishment that has not yet commenced, or he can file it after the garnishment has already started. A debtor who seeks to invalidate the original judgment also might file a motion to quash.
Read More: How to Answer a Writ for Garnishment
Procedure to Quash
The debtor must file a written motion with the court that issued the garnishment. In many cases, the court has a standard form that the debtor simply completes and submits to the court. The debtor can check with the court clerk if any such form is available. The motion should state the name of the court, the case number, the request for the motion to quash to be granted and the reason why the motion should be granted. A hearing may be necessary to determine the outcome. The court clerk determines when the hearing should be based on the court's schedule, and notifies the parties.
For a creditor to receive a valid judgment against a debtor, it must have provided the debtor with proper notice of the lawsuit pending against him. The creditor also must also provide notice to the employer. Additionally, the creditor must serve the debtor with notice of the garnishment in accordance with the rules of civil procedure adopted by the jurisdiction that ruled on the case. If the creditor did not strictly follow these rules, the debtor might be able to have the original judgment vacated and the garnishment stayed because the court that granted the judgment would not have the necessary authority to enter the order in the first place.
State and federal laws set parameters around the types and amounts of income and assets that can be garnished. For example, Social Security benefits, veterans' benefits, government pensions and Aid for Families with Dependent Children usually cannot be garnished. States may have additional exemptions. For example, Oklahoma has an exemption if the garnishment would cause an undue hardship. A claim for exemption may be a stand-alone form, or it may be included with the motion to quash the garnishment.
Samantha Kemp is a lawyer for a general practice firm. She has been writing professionally since 2009. Her articles focus on legal issues, personal finance, business and education. Kemp acquired her JD from the University of Arkansas School of Law. She also has degrees in economics and business and teaching.