Expert: Ontrack Financial Group llc - 5/20/2009

Question
QUESTION: I have had a judgement for two years and now I want to do a writ of garnishment without a lawyer. I heard that I would need all types of forms to do this. What forms do I need to accomplish this and how do I go about doing it? Thank you

ANSWER: Derrick,

Thank you for your question.  

Generally, there is no wage garnishment in Texas. The Texas Constitution makes current wages exempt property. There are two exceptions under the Texas Constitution for child support and spousal maintenance. Federal law makes other exceptions for such debts as student loans and certain taxes.

Texas Constitution –
Article 16 Sec. 28. Garnishment of wages.

   “No current wages for personal service shall ever be subject to garnishment, except for the enforcement of court-ordered:
   (1) child support payments; or
   (2) spousal maintenance.”

Section 63.001. Grounds.
A writ of garnishment is available if:

   * (1) an original attachment has been issued;
   * (2) a plaintiff sues for a debt and makes an affidavit stating that:
         o (A) the debt is just, due, and unpaid;
         o (B) within the plaintiff’s knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the debt; and
         o (C) the garnishment is not sought to injure the defendant or the garnishee; or
   * (3) a plaintiff has a valid, subsisting judgment and makes an affidavit stating that, within the plaintiff’s knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the judgment.


Warm regards,

Jack Hampton

Ontrack Financial Group llc



---------- FOLLOW-UP ----------

QUESTION: Thank you for your rapid response. I am going after the bank where the paycheck goes. I know I cannot go after wages, but what is owed to me by garnishing or freezing the bank account. I have did all the above and I qualify for a writ of garnishment but I did want to pay a lawyer $1500. I did research and found out that I did not need a lawyer, which takes me back to the original question. Do I need a writ of execution before the writ of garnishment and where can I find an exemption claim form? Do I need to know all the account information or just the bank name? What other forms do I need to accomplish this and how do I go about doing it? Thank you


Answer
Dear Derrik,

The original statement  "I have had a judgement for two years and now I want to do a writ of garnishment without a lawyer."

let me to believe your trying to perfect a garnishment.  Hence the reason I gave you the information.

You must obtain the appropriate form online or from the District Clerk's Office. http://www.txnd.uscourts.gov/forms/civil.html

Submit the original completed form and one copy to the District Clerk's Office along with an original and one copy of the USM 285 (available from the Marshals Service) If a USM 285 form does not accompany the Writ of Execution, the Clerk's Office will return the Writ to the requesting party. The District Clerk's Office does not assess a fee for a Writ of Execution. However, the Marshals Service does assess a fee. Please contact the Marshals Service at 214/767-0836 for more information.

In order for you to file a levy, you have to know where the bank is located.  After you determine the financial institution, you will need to administer a writ of execution on the bank. After the bank is served with the writ, they are legally obligated to seize the funds. Adding fuel to this financial fire, most banks charge a penalty for levies being placed on accounts.

If there is not enough money in the account to satisfy the debt, the account will remain frozen until the debt has been paid or some other debt repayment agreement has been reached.

In addition, if employer checks are directly deposited into the levied account, the monies will go towards the unpaid debt, while return check fees steadily accumulate.

Good Luck

Ontrack Financial Group llc