[CLBS] Garnishment Timing

[Randy French]

Sounds like the Sheriff is holding the money on the day of the bk filing, or maybe the check has not even made it to the sheriff.  I would argue that it does not go to the creditor, because the stay prohibits the sheriff from doing anything more to use the money to pay the creditor.   Money typically would go to the ch 13 trustee, or be returned to the debtor.  I don't have any case law at hand.  Sorry.

I send a letter to the sheriff and to the creditor informing them of the bk filing, the stay prohibiting any further collection and asking for all funds to be returned to the debtor.  I usually get compliance or a turnover to the trustee because the sheriff does not want to be responsible for deciding where the money is to go.  Then, it has to be listed as an asset and provided for in  the chapter13.

Randy French


-----Original Message-----
From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Howard Foley
Sent: Tuesday, January 19, 2016 11:10 AM
To: Patricia Evans; Tyler Wirick; BK listserve
Subject: Re: [CLBS] Garnishment Timing

Seems at the very least it is a preference and the trustee should demand it be turned over. 

-----Original Message-----
From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Patricia Evans
Sent: Tuesday, January 19, 2016 11:00 AM
To: Tyler Wirick <tyler.wirick at wiricklaw.com>; BK listserve <clbs at admws.idaho.gov>
Subject: Re: [CLBS] Garnishment Timing





Having the same problem. A creditor in Lewiston that claims it is all theirs. Appreciate answers!


Sent from my Samsung device

-------- Original message --------
From: Tyler Wirick <tyler.wirick at wiricklaw.com>
Date: 01/19/2016  8:34 AM  (GMT-08:00)
To: BK listserve <clbs at admws.idaho.gov>
Subject: [CLBS] Garnishment Timing

All,

Creditor is sent a check from a garnishment that occurred when the company cut the paychecks, which was one day before the Ch. 13 bankruptcy filing date, and five days before the debtor actually got paid (e.g. company cuts check 1/10; debtors files 1/11; debtor’s payday is actually 1/15.) Where does the money go? It seems to me that it is property of the estate and goes to the trustee. Thoughts?

Best,

Tyler Wirick
PO Box 910116
St. George, UT 84791
Phone: (208) 292-4200
Fax: (435) 214-1480
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