[CLBS] New policy or have I just not seen this situation before regarding garnishment wages.

[Sarah Bratton]

Did you exempt the wages under earned but unpaid wages up to 75%? If not
then the Trustee is entitled to all of the wages paid post petition but
earned pre-petition. If you have exempted 75% of the earned but unpaid
wages then debtor owes Trustee 25% of the wages. So whether those wages are
returned to debtor and then paid to Trustee is no different than if Trustee
just keeps the garnished funds up to the unexempt 25%.

Regardless of who gets the funds, debtor or Trustee there is in fact a stay
violation. you have to consider what your clients damages are but yes a
stay violation occurred and is debtors to pursue as the creditor garnished
post-petition wages.





Sarah B. Bratton, Attorney

Bratton Law, PLLC

Idaho Partner, Upright Law


Phone (208)918-0394

1020 W. Main Street

Suite 100K

Located in the Alaska Building

in Downtown Boise

(By appointment only)


Mailing Address:

7154 W.  State St. #167

Boise, ID 83714







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On Tue, Dec 12, 2017 at 1:50 PM, Jon Wilson <jon at boiselaw.org> wrote:

> Dear List Mates,
>
>
>
> Recently had the following situation come up...
>
>
>
> Debtor's wages were being garnished at the time of filing.in fact over at
> least a month prior to the bankruptcy filing.  Debtor files bankruptcy on
> 1st , payday several days later, but check was still garnished
> post-petition.  Trustee has taken the position that since the wages were
> "earned before the bankruptcy was filed" AND the payday/check was cut/paid
> AFTER the bankruptcy was filed, those wages are property of the bankruptcy
> estate and will be kept by the Trustee.
>
>
>
> Any thoughts, case law, etc. which counters the Trustee's position those
> wages earned, but paid post-petition via writ of continuous garnishment
> filed by Creditor, are those garnished wages property of the Bankruptcy
> Estate?
>
>
>
> If the Trustee is correct, is there a stay violation against the Creditor
> who was garnishing the debtor's wages "post-petition" even if the Trustee
> is
> allowed to keep these "wages"?
>
>
>
> Appreciate you input.
>
>
>
> Jon
>
> Jon R. Wilson
>
> Attorney at Law
>
>
>
> Wilson Law Offices, P.C.
>
> 4614 W. Emerald St.
>
> Boise, ID 83706
>
> Tel. (208)343-8400
>
> Fax (208)424-5006
>
> Email:  jon at boiselaw.org <mailto:jon at boiselaw.org>
>
>
>
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