A Little Mercy Please

Garnishment – the dreaded word. Garnishment is when a creditor reaches into your paycheck each month and pockets a certain amount, which is then applied toward what you owe that creditor. My guess is that most people think of garnishment in relation to child support payments. But garnishment can happen anytime you have an outstanding unpaid judgment against you.

For this entry, assume that the creditor obtained a judgment against the debtor. Through post-judgment discovery (a court-sanctioned investigation of the debtor’s assets and income), the creditor finds out that the debtor works in a local factory and makes $500.00 a week in gross income. State and Federal laws restrict how much a creditor can garnish from any individual’s wages. The calculation varies depending on how much the individual makes. In this case, assume the creditor can garnish $75.00 out of each paycheck of the debtor.

Our debtor does not make a lot of money, but he supports a large family on his $500.00 a week, including his wife, three children, and his elderly mother. The $75.00 less a week make a huge difference in his ability to support his family. Is there anything he can do for relief?

Yes. Buried among the procedural guidelines, is a small but helpful section: 735 ILCS 5/2-1402(C)(2). This section gives the court discretion to reduce the amount that can be garnished from the debtor. Specifically, the court can take into consideration “the reasonable requirements of the judgment debtor and his or her family, if dependent upon him or her.” This language does not guarantee that a judge will reduce the amount to be garnished, but it does mean that the debtor can plead for mercy. Instead of allowing $75.00 to be taken out each week, an understanding judge might knock the amount down to $35.00 a week, which will go a long way in helping the debtor take care of his family.  

Concluding remarks: If you’re facing a potential garnishment that will impact your ability to provide for your family, ask the judge for a little mercy, and remind him that the legislature has given him the authority to extend that mercy.

Holding a Wildcard

My family loves to play games, from board games as traditional as Monopoly to a card game affectionately referred to as Pond Scum. One of my favorite games as a young child was Uno. It was simple and fast. Plus, I always knew which card to hang on to: the wildcard. It was a beautiful card, containing all the colors of the game. The wildcard could be played on any other card, and I always viewed it as the perfect way to end a game of Uno.

In Uno, having a wildcard is good, but knowing when to play it is better. The same is true with a legal wildcard.

The legal wildcard I’m referring to is found in the Illinois Code of Civil Procedure. 735 ILCS 5/12-1001(b). The players who hold a wildcard are debtors. A debtor is a person against whom a judgment has been entered.

So how much is that wildcard worth? And when should it be played?

The wildcard is worth $4,000 a person. Figuring out when to play it is the tricky part. The law puts a debtor’s assets into two figurative piles. The first is the exempt pile. This is the stuff the law says your creditor can’t touch, like family pictures, a bible, or social security payments. The second pile contains everything else, which the law calls non-exempt assets. The second pile is the candy store for the creditor. They get to look at what’s there and decide (with the court’s blessing) what they want to use to pay the debt.

With these basics in mind, here are some simple rules for playing the debtor’s wildcard: (1) only use it on non-exempt, second pile, assets; (2) don’t use it until the creditor is trying to come after something from the second pile that you want to keep; (3) claim it in court, that’s the only way it counts; and (4) make sure you really want to use it because you only get to play it once up to $4,000. For example, let’s say you owe AT&T $1,000 on a judgment and in your second pile you have a bank account worth $3,000. You can play your wildcard to protect all the money in your bank account, but that only leaves you with $1,000 on your wildcard. That means, if AT&T, or another creditor, came after the 1965 Mustang you restored with your dad, you’d only have $1,000 worth of wildcard left to play toward something that might be worth more to you than your bank account.      

Concluding Remarks: (1) Always consult a lawyer (2) know your cards and know when to play them.