Can debt collectors overdraw my bank account after Order for garnishment if account balance is not enough to cover full debt, or will they just take whatever funds are available in the account and leave it at zero.
The creditor can place a garnishment on your bank account. This effectively freezes the account. The garnishment amount is generally twice what you owe on the underlying debt. Any funds in the account at the time the garnishment is placed and any funds placed into the account after the garnishment is placed can be seized by the entry of a turnover order. The bank will not pay the creditor the difference between what you owe under the order and the amount of funds currently available in your account.
Your bank will charge you fees for the garnishment being placed, and may charge you fees because the garnishment will act the same way as a debit which even if rejected by the bank has caused a negative balance. Usually the bank will pay itself the fees it charges before turning over funds, but if you do not have enough in the account to cover the fees the bank will expect you to provide funds to correct your balance.
As a general principle of law, someone with a court order entitling them to take money from someone else's bank account to satisfy a judgment can only take what's there. Otherwise, they'd be taking assets that belong, not to you, but to the bank!
Of course, the bank may assess fees in accordance with its agreement with the depositor, and the assessment of those fees may have nothing to do with what's in the account, so if the account is hit with fees once the debt collectors take what's in it, it may become overdrawn.
Not legal advice as I don't practice law in Illinois. It's just my two cents on the facts you describe in light of general principles of law. If you need legal advice, please consult a lawyer who holds Illinois licensure. That's not me.
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Consumer Protection Attorney
They can take whatever is in the account, once they have a turnover order from the court. You will still owe the balance.
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Think about claiming a wildcard exemption for the amount in your bank account to protect those funds.
The information in this answer is not intended as legal advice nor do I intend to create an attorney-client relationship with any reader simply by answering this question or contributing as a member of AVVO.
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