My wages are being garnished for $661 mo! Ive so far paid 1.5 months of payments. Am I entitled to the money I paid prior to filing, if so how do I obtain it. Also if I file and my employer still sends a payment, what steps do I take to retreive my money if I file pro se.
You need to contact the attorney for the creditor garnishing your wages and make sure they have notice of the bankruptcy so they can file a release of garnishment. You can also contact the court clerk where the garnishment was filed and find out how much money if any is the court registry in your case. You need to notify the court you filed for bankruptcy and see if they have any special procedure for getting the money back. You also need to make sure you disclose the money sitting in the registry on your schedules and exempt it if you can or the trustee could take it for the benefit of creditors.
Pro se cases almost never ever work. Ask the local Chapter 13 trustees about they feel about pro se cases. Your attorney fees for a bankruptcy attorney can be included in your Chapter 13 payment. At least take advantage of a free consultation with a local attorney and find out what your monthly payment would be if you filed.
I've posted a link to blog post I wrote about garnishments if you are interested.
You would have to file an Adversary in the bankruptcy case to recover preferential payments but they may have to be surrendered to the chapter 7 trustee. You have to give notice of the bankruptcy filing to the local sheriff and your employer AND the creditor who filed the restraining notice to garnish your wages. Then, if they do not stop withholding, you may be able to sue them for contempt.
You filed Bankruptcy to get rid of debt and gain a "Fresh Start" but the creditors won't leave you alone even though you told them you filed! Here is what you should do! 1
Record the Communication
When you file Bankruptcy you are protected by a statute called the "Automatic Stay". Section "362" of the Bankruptcy Code is a 15 page statute that basically says that 1)No entity or person; 2) may commit any overt act (i.e. do anything) to; 3) gain possession or control of...4) property of the estate. All of your property is part of the bankruptcy so if someone violates your rights and communicates with you after you filed the case make sure you write down all of the information you can get from them. Name, real address and mailing address, website, corporate name and phone number and anything else your attorney needs to sue them!2
Check and Make Sure they are Listed!
Next, and before you contact your attorney, check the mailing matrix and especially Schedule F to make sure the creditor is listed! If the creditor is not listed then let your attorney know. The creditor will probably have to be added to the case!3
If the Creditor is Listed
If the creditor is listed write down a summary of the communication. Did the creditor threaten you? What did they say? Did you tell them you had filed Bankruptcy and did you give them the case number? How did all of this make you feel? Once you provide all of this information to your attorney they may have a basis to sue the creditor to enforce your rights! You spent a lot of time, effort, money and emotional capital to finally decide to file Bankruptcy. DO NOT allow abusive collection agencies or creditors take away the relief you felt during or after the case ended. Make a record and determine your rights!
Post bankruptcy discharge the same facts give rise to litigation because you are protected under section 524, or the discharge Injunction. Do all the things stated here and contact your attorney. You also have a right to go after the offender if you gave them actual notice of the bankruptcy and they ignored you.
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Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. The opinions expressed herein are those of the author only and the fact that he has worked as an Assistant District Attorney; State Supreme Court Clerk; Special Assistant United States Attorney (Hawaii); Assistant Cornell University Counsel or Judge Advocate, United States Marine Corps should not be relied upon to assume that these statements reflect the policy of these organizations.
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