Illinois Debt, Collections, and Garnishment

February 1, 2010 8:07 AM

My friend, who lives in Illinois, just had (or is about to have) her wages garnished by a debt collector. What are her options?

Here's the situation as best as I understand it:

She racked up about $2,400 in medical expenses, and this amount went to a collection agency. The collection agency hired a lawyer, who told her that they'll be garnishing her wages for the full amount, which would leave her seriously screwed on paying other bills, buying gas to get to work, etc. She asked them if she could set up a payment plan, and they agreed to her sending a $100 check to this law firm. Until last week she's been sending $200 checks to get this paid off as quickly as possible.

There's been a lot of stress in her family lately. She's been having to travel across three states to support her dad, who's currently undergoing a successful cancer treatment program. She called the lawyer and said that she's not going to be able to make the $100 payment for January, but that next month, after her paycheck is deposited (I believe she's paid once a month), she can send a $200 check.

The law firm said that she's not living up to her end of the bargain by not sending a $100 check in January (even though she sent a $200 check in December and $200 in November, etc). They told her that they'll now be garnishing her wages for the full remainder of the amount she has yet to pay. I believe she's paid about $1000 of the original $2400, so her next check will have $1400 deducted from it, which is going to set her up for financial instability (which might make her miss more payments, which might spur new collectors, who might....you get the picture).

She owes the money. She's not trying to escape that. What resources does she have available? Do you know if this law firm is acting within the law, and if you don't know, is there a (free, ethical) consumer debt service in Illinois she can turn to? Does she need to lawyer up right away? If so, what kind of lawyer would handle such a situation?

posted by spikeleemajortomdickandharryconnickjrmints to law & government (16 answers total)

IANAL, but has a court been involved? It seems implausible that a firm could garnish wages without a court order.
posted by jon1270 at 8:17 AM on February 1, 2010 [1 favorite]

She should contact Illinois Legal Aid right away.

It turns out that threatening to garnish someone's wages without the ability to do so may actually be illegal.
posted by valkyryn at 8:21 AM on February 1, 2010 [3 favorites]

I once had a situation go down where my wages were about to be garnished. It was for real, a court decision from my failure to appear. (Turns out they never notified me, so it went away, BUT), I was given forms upon which I would list my incomes from all sources and my mandatory bills from all sources, and was told that the garnishment would be some % of the leftover money. For me, at the time, it was going to be something like $27 a paycheck from a $1200 debt.

That was a different state and jurisdiction, idk how yours works. However, the sheriff's job isn't typically to make you homeless, except for evictions...
posted by TomMelee at 8:25 AM on February 1, 2010

I'm on that site now, valkyryn, and found this link, which says that they can garnish only 15% of her weekly salary or the amount of her take-home pay over $360 (whichever is less).

It sounds to me that this law firm is threatening the full garnishment as a tactic to get her to pay the $100 now, but I'm not able to talk to her directly right now to probe for more facts.
posted by spikeleemajortomdickandharryconnickjrmints at 8:26 AM on February 1, 2010 [1 favorite]

I'm not a lawyer, but a quick google shows that in Illinois, they can only garnish about 15% of her weekly wages, so I'm not sure how he'd be able to pull $1400 out of her next paycheck unless she makes like $8500 a week...

http://www.illinoisprobono.org/index.cfm?fuseaction=home.dsp_Content&contentID=298

Furthermore, building on what jon1270 said, and speaking from experience long ago, one of the cornerstones of debt collecting is using vague language, vague threats, and bluffing, to create an almost panicked sense of urgency in which the debtor must send you OMG All The Money Now Now Now, or bad things will happen. When I worked for a collection agency 15 years ago or so, they wouldn't even consider going after a garnishment unless the debt was in excess of like $10,000. And yet, all around me, in our little cubicles, I could hear collectors pushing their debtors -- "They're reviewing this case today to decide if they'd like to take legal action, I need to get a check from you TODAY or it might go to court!" I'd put good money down that your friend never talked to a lawyer -- some of these little agencies have a part-owner who's a lawyer, and that allows them to say they're calling from the Law Offices of So-and-So-- again, vague and threatening.

Encourage her to continue to make the payments she can afford to make. Encourage her to document everything and get everything the collectors are telling her in writing. But also encourage her not to take any shit from them. Have her familiarize herself with the Fair Debt Collection Practices Act, and let her repay her debts on HER OWN terms.

http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentID=1968
posted by Jinkeez at 8:37 AM on February 1, 2010 [3 favorites]

in order for them to garnish her wages, she has to have a judgement entered against her. if they don't have a judgement, they need to pursue that first, and then pursue the garnishment order.
posted by lester at 8:55 AM on February 1, 2010 [1 favorite]

Fair Debt Collection Practices Act is what Winnifred meant by the acronym. There are specific things that creditors are not allowed to do. Making threats that they can't follow through on is one of them. Your friend should find a lawyer familiar with that act and who might take up the matter on a contingency basis.
posted by Atreides at 8:55 AM on February 1, 2010

I'm in CA but my understanding is generally in-line with other posts above. Legal wage garnishment amounts are generally capped by law to make sure its not an undue hardship. She needs to learn her rights because this area is very regulated.

For example this Texas Man Routinely Sues debt collectors who overstep their bounds.
posted by bitdamaged at 8:56 AM on February 1, 2010 [1 favorite]

By finding a lawyer, I mean, checking with a lawyer who's familiar with the law, and then see if there's a case to be made.
posted by Atreides at 8:56 AM on February 1, 2010

I know from personal experience -- in Illinois -- that the garnishment can't happen without a court decision, which can take a while -- not as long as an eviction, but certainly not something that can be done "next paycheck" without her hearing from the courts -- and then after that decision has been made, the courts will contact her employer/HR department.

There's no way I'm aware of that they can legally garnish that amount from her next check if those steps haven't happened and even after those steps have been followed, it can be more than 15% -- even if she had multiple garnishments, the TOTAL that can be garnished from a paycheck is 15%.

My recommendation would be to keep paying as planned and promised again if she can and documenting it, so that it ever gets to the case where it does go to court, she'll be much, much better off than most. Also, the recommendation of debt counseling made above is doubly advisable -- both so she knows her options and so that if something ever does go to court, she has proof that she has been doing everything she can.

Again I'm not a lawyer but I have gone through this but I have had (rather nasty) experiences of this kind.
posted by MCMikeNamara at 9:56 AM on February 1, 2010

Okay, I am a lawyer, and the reason I posted a link to that side is because this girl needs a lawyer. Someone is threatening her with legal action. She is in no position to adequately defend herself, and the threat itself may be illegal (and may possibly enable her to file a claim of her own!). Ergo, it's time to stop collecting general information and probing for facts, and obtain formal representation immediately.
posted by valkyryn at 10:35 AM on February 1, 2010 [1 favorite]

FDCPA

A few people flagged it, maybe they didn't understand what it meant. I know I didn't. If you've only got time to add a one word answer without explaining what it is or why you're typing it, maybe you should wait until you have more time. Otherwise feel free to go to MeTa if you think this is unfair or unreasonable.
posted by jessamyn at 12:18 PM on February 1, 2010

Otherwise feel free to go to MeTa if you think this is unfair or unreasonable.

All good; just wondered about the inner workings of a mod's deletion decision tree.

I've taken valkyryn's advice and have recommended she call the Land of Lincoln Legal Assistance Foundation - Southern Regional Office at 877-342-7891 (found on the illinoisleagalaid.org site linked above).
posted by spikeleemajortomdickandharryconnickjrmints at 12:21 PM on February 1, 2010

My recommendation would be to keep paying as planned and promised again if she can and documenting it

That's her plan. At first I thought that this probably wasn't a law firm, but a collection agency representing themselves as a law firm, but she said that she's been going to their physical location to drop these checks off. It's a law firm (or at least they're representing themselves as such).

I think knowing that she doesn't yet have a judgment against her and that they can't garnish more than 15% is a huge relief. The big fear here was that her next paycheck would be close to $0, which would start a chain reaction of bad events.

Thanks for the schmoopy, MeFi.
posted by spikeleemajortomdickandharryconnickjrmints at 12:55 PM on February 1, 2010

FYI, law firms can operate as collection agencies, and they are subject to the same restrictions, basically. It just adds a little extra fear factor to it, and allows them to move smoothly between court matters and collection matters.
posted by MrZero at 6:47 PM on February 1, 2010

I just found out a little more information. Apparently in July of last year they sent her a letter saying that they're going to pursue a judgment against her, and that's when she set up the $100/mo payment plan.

So they have the judgment already. At least now she knows that the garnishment, if it happens (and it sounds like it will), won't be for more than 15%.

She has the resources listed above and she'll get in touch with someone to make sure her rights aren't being violated.
posted by spikeleemajortomdickandharryconnickjrmints at 7:51 PM on February 1, 2010