A debt collector is threatening to garnish my wages, but I live in Illinois and I did not think that was allowed. What are my rights?
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.
Illinois Compiled Statutes are available online.
The most common method used by judgment-creditors to enforce judgments is wage garnishment, in which a judgment creditor contacts your employer and require the employer to deduct a certain portion of your wages each pay period and send the money to the creditor.
Illinois garnishment rules are complex, and are found in the Illinois Code of Civil Procedure, Article XII, Chapter 7: Garnishment and Part 8. Wage Deductions. The maximum wages, salary, commissions and bonuses subject to collection under a deduction order, for any work-week shall not exceed the lesser of (1) 15% of the gross amount paid for the week or (2) the amount by which disposable earnings exceed 45 times the federal minimum wage hourly wage or, under a wage deduction summons served on or after January 1, 2006, the minimum hourly wage prescribed by Sec. 4 of the Illinois Minimum Wage Law, whichever is greater, in effect at the time the amounts are payable (735 ILCS 5/12-803 and S. 1752, L. 2005).
In Illinois, Spouse A's earnings are free from the interference of Spouse B's creditors (750 ILCS 65/7). Child support garnishment limits are higher. Support of a spouse or dependent children have priority over all others (735 ILCS 5/12-808(c) and S. 1752, L. 2005).
In Illinois, 401(K) or other retirement funds are exempt from garnishment (735 ILCS 5/12-704 and 5/12-804).
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 concepts are the same.
In Illinois, a levy is called non-wage garnishment, and is allowed under 735 ILCS 5/12-701 et seq. Non-wage garnishment is allowed if the plaintiff possesses a legal instrument such as a notice commanding the financial institution of a claim against the account. Illinois 735 ILCS, 5/12-1001(b) exempts debtor's interest in $4,000 worth of personal property, including cash.
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.
Under Illinois law, an outstanding judgment can become a lien on real estate in Illinois owned by the judgment debtor. A judgment lien gives the judgment-creditor the right, under certain circumstances, to have the property sold in order to satisfy the judgment (735 ILCS 5/12-101 et seq). The Illinois homestead exemption makes it difficult to sell the residence of the judgment debtor, however (735 ILCS 5/12-901 et seq).
If you reside in another state, see the Bills.com Liens & How to Resolve Them article to learn more.
Under Illinois law, the statute of limitations is governed by Article XIII 735 ILCS 5/ Limitations on an open account (i.e., credit card) is 5 years, and written contracts have a 10-year statute of limitations.
Illinois foreclosure laws are found in 735 ILCS 5/Art XV. Review Illinois laws to learn more about the rules surrounding foreclosure in this state, including deficiency balances. Illinois has no anti-deficiency rule. See also the Bills.com resource Mortgage Foreclosure Illinois to learn more about Illinois foreclosures.
See the Bills.com resource Illinois Payday Loan to learn how Illinois law protects Illinois payday loan borrowers.
Debt collectors must obtain a license in Illinois. The Illinois Collection Agency Act (ICAA) mirrors the federal Fair Debt Collection Practices Act, but unlike other states, does not include original creditors. Violation of ICAA is not a criminal offense. If you have been victimized by a collection agency, file complaints with the:
Consult with a lawyer to discuss filing an ICAA-based civil lawsuit against the collection agent. Some lawyers take these cases on a contingency basis, which means no out-of-pocket costs to you. ICAA's limits and prohibitions can be found in Illinois Chapter 225, Act 425.
Consult with a Illinois attorney experienced in civil litigation to get precise answers to your questions about liens, levies, and garnishment in Illinois.
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