A wage deduction proceeding is a tool creditors may use if a debtor fails to pay a judgment. It is sometimes referred to as a wage garnishment. It is properly called a wage deduction because the creditor is trying to get the debtor's employer to deduct a certain percentage of wages from the debtor’s paycheck and to have that amount sent to the creditor.
Wage deduction procedure
After a creditor gets a court judgement, they can file a document with the court clerk called a Wage Deduction Affidavit. The creditor states their belief that the debtor’s employer owes the creditor wages. In that affidavit, the creditor must certify that, before filing the affidavit, he mailed a wage deduction notice, explained below, to the debtor at the debtor's last known address. That address must also be stated in the affidavit.
At the same time they file the affidavit, the creditor must also file a set of written questions called "interrogatories" with the court clerk and send a copy to the employer.
These interrogatories enable the creditor to determine how much the employer will owe the debtor in wages over a stated period of time, and to determine the proper amount of non-exempt wages that can be deducted. The employer is required to answer these interrogatories, file them with the court, and to mail or deliver a copy of its answers to the creditor and to the debtor.
When the court clerk receives the affidavit and interrogatories from the creditor, the clerk will issue a summons which will be served on the employer. The summons will tell the employer how much time it has to file its answer to the interrogatories and the date that the matter will be heard in court.
The employer is required to pay the debtor the amount of their exempt wages. However, subject to orders from the court, the employer must hold the amount of non-exempt wages due or which may later come due during the period of the wage deduction. The wage deduction will stay in place until the judgment debt is paid off. See section on Exemptions. The employer cannot withhold more than the amount due on the judgment.
On the return date in court stated on the summons, the court will decide whether the employer should turn the money being held over to the creditor. The order will remain in effect until:
- The judgment is satisfied;
- The debtor leaves the job; and
- The debtor no longer earns enough to be garnished.
If the employer responds that the debtor does not earn enough to be garnished, the court may enter an order directing the employer to begin withholding wages in the future when the debtor is earning more than the exemption amount.
A deduction order cannot be entered in favor of the creditor unless:
- The Wage Deduction Affidavit certifies that a copy of the Wage Deduction Notice, see immediately below, has been mailed to the debtor; and
- The employer’s answer to the interrogatories provides a summary of the computation used to determine the amount of non-exempt wages.
Wage deduction notice
The notice mailed to the debtor must follow a particular form set by statute. Among other things, the notice must:
- Identify the court case and inform the debtor that the creditor has started a proceeding in court to force the debtor’s employer to deduct a portion of the debtor's wages;
- Include the date and time the matter is to be heard in court;
- Explain that the amount of wages that may be deducted is limited by federal and Illinois law;
- Explain the mathematical formula for determining the amount of wages that lawfully can be deducted and the amount of wages that are protected i.e., exempt;
- Inform the debtor of the right to request a hearing to dispute the wage deduction because the wages are exempt; and
- Explain how to obtain that hearing.
What the debtor should do if their employer is deducting wages
The debtor should determine how much money the employer is deducting from each paycheck. The debtor should then figure out if they are taking more than they are allowed to take, see section of this manual on Exemption Rights. If so, the debtor should inform the employer and insist that they take out only the lawful amount. When the debtor gets a copy of the employer’s answers to the interrogatories, the debtor should look to see how much non-exempt wages the employer says it has withheld.
If the employer continues to withhold too much from the paychecks, the debtor should follow the instructions on the Wage Deduction Notice on how to request a hearing to ask the court to declare the proper amount of wages exempt.
If the employer’s calculation is correct, the court cannot lower the amount garnished based on hardship or other expenses of the debtor.
The debtor cannot be fired or suspended due to a wage deduction
An employer may not discharge or suspend any employee because their earnings have been the subject of a wage deduction proceeding.
This protection for the debtor is only for a single debt. If an employer has to deal with a wage deduction from a second creditor on a different debt, this protection is no longer available.
A creditor with a court judgement can also garnish money belonging or owed to the debtor that is in the hands of other third parties. The term "garnish" means to take. Most often, a non-wage type of garnishment takes money from a debtor’s bank account, but it can also be taken from an insurance company or anyone else who owes money to the debtor.
The garnishment procedure: third party citation to discover assets
The procedure for a non-wage garnishment is very similar to the wage deduction process. The creditor must first obtain a court judgment, and then can file an affidavit with the court clerk. The affidavit states the creditor's belief that some other person has the debtor’s property in their control or otherwise owes money to the debtor. The most common procedure used to garnish bank accounts is called the “Citation To Discover Assets." In a traditional garnishment, the bank or other third party is known as the "garnishee," but in a Citation To Discover Assets, the third party is called the “Respondent.”
The creditor also needs to file a copy of a "Garnishment Notice" or a copy of the Citation To Discover Assets. This must be mailed to the debtor 3 days after the Respondent is served, see below.
Finally, the creditor must also file with the clerk a set of written interrogatories to be answered by the garnishee or respondent. The purpose of the interrogatories is for the creditor to determine how much non-exempt money or property is being held by the garnishee or respondent.
The garnishee/respondent is required to answer these interrogatories, file them with the court, and to mail or deliver a copy of its answers to the creditor and to the debtor.
When the court clerk receives the affidavit and garnishment or citation documents from the creditor, the clerk will issue a "garnishment summons" or citation, which will be served on the garnishee/respondent e.g., the bank. The summons will tell the respondent the amount of time it has to file its answer to the interrogatories and the date that the matter will be heard in court.
The garnishee/respondent is required to hold or "freeze", subject to orders from the court, the amount of non-exempt money or property it is holding, up to twice the amount due on the judgment. The debtor may receive a notice from the bank indicating a very large amount has been frozen, typically much more than the debtor has in the bank account.
On the return date stated on the summons, which takes place between 21 and 30 days after the summons is issued, the court will decide whether the garnishee/respondent should turn the money it is holding over to the creditor.
The court cannot enter a deduction order in favor of the creditor unless the court record shows that a copy of the garnishment summons and the Garnishment Notice, see below, were mailed to the debtor, by first class mail, within 2 business days of service of summons on the bank or other garnishee.
The garnishment notice
The notice mailed to the debtor must follow a particular form set by statute. Among other things, the notice must:
- Identify the court case and inform the debtor that the creditor has started a proceeding in court to force the bank or other garnishee to turn over monies in the account to pay off the judgment;
- Give the date and time the matter is to be heard in court;
- Explain that the amount of money or property other than wages that may be garnished is limited by federal and Illinois law;
- Explain what amount of money or property is protected from garnishment called "exemptions". See section in this manual on Exemption Rights; and
- Tell the debtor that they have the right to request a hearing to dispute the garnishment or to ask the court to declare part of the money or property exempt and explain how to obtain that hearing.
How much money can be garnished from the bank account
When the bank or other garnishee receives the summons or citation, they are required to freeze any "non-exempt" funds in the account, up to the amount of the judgment. A freeze means that the debtor cannot withdraw that money, and it cannot be used to pay any checks written by the debtor.
The court can later order that frozen funds be turned over to the creditor. The debtor can prevent this from happening by claiming that the funds are exempt from garnishment or withdrawing the funds before the bank is served with the summons. However, the debtor will not get notice of the garnishment until after the bank has been served with the garnishment summons or third party citation to discover assets. In addition, many banks receiving a garnishment summons will charge the account holder a fee for its services in processing the garnishment. The bank may charge a fee even if all of the funds in the account are exempt.
What the debtor should do if the bank has frozen their account
Remember, the creditor is permitted to garnish only non-exempt funds. Most forms of government benefits, including Public Aid and Social Security, are exempt. If the account consists entirely of these exempt government funds, then the entire account is exempt. However, the bank may not know what amount of the funds are exempt, especially if there are deposits other than electronic direct deposits of benefits.
Federal regulations prohibit banks from freezing an amount equal to the last two months of electronic direct deposited exempt benefits, such as Social Security or Veteran’s benefits. Exempt funds remain exempt even after they are deposited. Even if the debtor has more than two months of funds in the account, the money is still not garnishable.
If the bank does freeze the account, or part of it, then the debtor should inform the bank and the creditor if any of the money it has frozen is exempt. In addition to specifically exempt funds, such as Social Security, every debtor has a personal exemption or "wildcard” of $4,000 in any property of the debtor's choice. The debtor can choose to have up to $4,000 in the frozen account declared exempt under this wildcard exemption. However, without a court order, the bank will usually refuse to release any funds other than the last two months of directly deposited federal benefits. Therefore, the debtor will have to go to court to exercise this exemption. The Garnishment or Citation Notice tells the debtor how to obtain a hearing to get the court to declare the funds in the account exempt.