I live in Kansas, and a collection agent is trying to collect a debt from me. What rights are involved?
A collection agent or law firm that owns a collection account is a creditor. A creditor has several legal means of collecting a debt. But before the creditor can start, the creditor must go to court to receive a judgment. See the Bills.com resource Served Summons and Complaint to learn more about this process.
The court may decide to grant a judgment to the creditor. A judgment is a declaration by a court that the creditor has the legal right to demand a wage garnishment, a levy on the debtor's bank accounts, and a lien on the debtor's property. A creditor that is granted a judgment is called a "judgment-creditor." Which of these tools the creditor will use depends on the circumstances. We discuss each of these remedies below.
The most common method used by judgment-creditors to enforce judgments is wage garnishment. A judgment-creditor contacts your employer and requires the employer to deduct a certain portion of your wages each pay period and send the money to the creditor.
Kansas garnishment rules are found in Kansas Chapter 60 Article 7. In Kansas law, "Garnishment is a procedure whereby the wages, money or intangible property of a person can be seized or attached pursuant to an order of garnishment issued by the court under the conditions set forth in the order." Kansas follows federal limits for garnishment (60-734). See the Dept. of Labor's Employment Law Guide - Wage Garnishment and the Dept. of the Treasury's Answers About Garnishments. Municipal and state employees may be garnished.
Kansas restricts wage garnishment for collection agents. Under K.S.A. 60-2310(d), "If any person, firm or corporation sells or assigns an account to any person or collecting agency, that person, firm or corporation or their assignees shall not have or be entitled to the benefits of wage garnishment." This exemption does not apply to:
A levy means that the creditor has the right to take whatever money in a debtor's account and apply the funds to the balance of the judgment. Again, the procedure for levying bank accounts, as well as what amount, if any, a debtor can claim as exempt from the levy, is governed by state law. Many states exempt certain amounts and certain types of funds from bank levies, so a debtor should review his or her state's laws to find if a bank account can be levied. In some states levy is called attachment or account garnishment. The names may vary but the concept is the same.
In Kansas, levy law is intertwined with garnishment law. Property can be attached (garnished) in Kansas under Kansas Chapter 60 Article 7. Intangible property, such as accounts receivables, can be garnished (60-732). Funds held by a financial institution can be garnished as well (60-733).
In most states, including Kansas, 401(K) and other retirement funds are exempt from levy/account garnishment (K.S.A. 60-2308). It is advisable to have those funds deposited into a separate bank account to ensure financial accounting if you are concerned about garnishment on those payments.
If you reside in another state, see the Bills.com Account Levy resource to learn more about the general rules for this remedy.
A lien is an encumbrance -- a claim -- on a property. For example, if the debtor owns a home, a creditor with a judgment has the right to place a lien on the home, meaning that if the debtor sells or refinance the home, the debtor will be required to pay the judgment out of the proceeds of the sale or refinance. If the amount of the judgment is more than the amount of equity in your home, then the lien may prevent the debtor from selling or refinancing until the debtor can pay off the judgment.
Kansas laws governing liens are found in Kansas Revised Statute Chapter 58 Article 2. Liens are allowed on real property. Liens are also allowed on building materials, crops, and livestock if the plaintiff is the defendant's supplier. Liens are allowed for labor and materials. Liens are allowed for judgments under Kansas 60-2202 and become a lien on the real property of the judgment debtor.
Succinctly, liens are allowed for contractors and farm suppliers. Judgments can be enforced as a lien on the defendant's real property.
If you reside in another state, see the Bills.com Liens & How to Resolve Them article to learn more.
Statute of Limitations for most Kansas consumer debt issues are found in Chapter 60, Article 5 K.S.A. 60-512.
|Credit card||3 or 5*|
|Spoken contract||3||K.S.A. 60-512(1)|
|Written contract||5||K.S.A. 60-511(1)|
|Promissory note||6||K.S.A. 84-3-118|
|Certified check||3||K.S.A. 84-3-118|
| *Internet commentators argue if the credit card issuer cannot produce a contract signed by the the consumer, Kansas' oral contract statute of limitations applies. We cannot find Kansas case law supporting that argument. Consult with a Kansas lawyer for advice. |
**Can be revived if less than 2 years has passed since judgment became dormant. Kansas domestic judgments for child support never become dormant.
Consult with an Kansas attorney experienced in civil litigation to get precise answers to your questions about liens, levies, and garnishment in Kansas.
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