Can Student Loan Garnishments be Stopped When Filing Pro Se?

English: Day 3 of the protest Occupy Wall Stre...

English: Day 3 of the protest Occupy Wall Street in Manhattan's Zuccotti Park. (Photo credit: Wikipedia)

Filing bankruptcy Pro Se is filing without the assistance of a lawyer. Student loans are not discharged in bankruptcy filings. If you are already having your wages garnished by a judgment rendered for student loans when you decide to file for bankruptcy protection, can student loan garnishments be stopped when filing Pro Se?

Whenever a bankruptcy is filed, all collection activity must cease according to the bankruptcy’s automatic stay provision. The automatic stay in bankruptcy is a federal legal procedure used by bankruptcy courts to cease collection activities until all debts have been settled. Technically, garnishing wages is considered a collection activity.

All garnishments, whether administered by federal institutions or private institutions, should stop immediately after a bankruptcy has been filed by a debtor. The automatic stay immediately kicks into effect the moment the bankruptcy is filed.

Practically, though, it doesn’t always work out that way. Sometimes for a variety of good reasons, the creditor does not always get the news a bankruptcy has been filed, and therefore, will not necessarily stop garnishments in what you might consider a timely manner. When all the paper work has been correctly turned into the bankruptcy court, these kinds of oversights are rare, and most creditors are savvy enough in understanding bankruptcy laws to obey the stay.

Whether you file Pro Se or have an attorney file for you, bankruptcy laws do not change. Any creditor caught violating the automatic stay is subject to the same penalties regardless of who is filing the bankruptcy for whom. Problems might arise in the enforcement of those violations against a Pro Se filer who doesn’t really understand bankruptcy protocol.

A bankruptcy court does not necessarily have information like the continuation of garnishments against the automatic stay orders. These facts must be brought to the attention of the court. Sometimes, that requires the filing debtor to file a motion for violation of the automatic stay. Depending on the circumstances, this may result in the debtor having to prove the violation by providing documents where his or her income has been garnished. This, in turn, may result in a penalty against the offending accused, or it may not.

Everything that happens out of the normal in a bankruptcy filing usually costs money. Any time you petition a court for a special reason, like filing a motion for violation of the bankruptcy laws, there are usually court costs that are associated with the petition. If you have a lawyer, he or she will also normally charge a fee to handled the motion. Some of these costs are recoverable and others are not, depending on the violations and the outcome. Obviously, a Pro Se filer would have the lesser risks of costs, but most of the time, the lesser chance at success.

In garnishments, not only might you have to appeal to the bankruptcy courts to see that the automatic stay is adhered to, you may have to contact the institution administering the garnishment with court documents to see to it the garnishments cease and/or monies returned.

Garnishments can be complicated, and experienced bankruptcy lawyers usually understand the protocol necessary to get them stopped in a timely manner.

Enhanced by Zemanta
The following two tabs change content below.