Thanks to the work of Kansas Legal Services attorneys on a case that went all the way to the Kansas Supreme Court, no one can take a garnished paycheck from a debtor in Kansas.
On November 24, 2021, the Kansas Supreme Court made it clear that it is illegal and improper for a creditor to debit a debtor’s paycheck from a bank account. This overturned a bad decision by the Court of Appeal.
If you would like to read the opinion of the Supreme Court of Kansas, you can click here, Stormont-Vail Healthcare, Inc. v. Sievers498 P.3d 1217 (2021), opinion filed November 24, 2021, No. 121,109.
A garnishment of a debtor’s bank account is often traumatic.
After a judgment has been entered against a person in a debt collection case, the plaintiff (also known as the creditor) will often seek the assistance of the court to collect the judgment/debt.
Unfortunately, the defendant (also known as the debtor) can have their bank account seized.
Many debtors live paycheck to paycheck. It is important for the debtor to know that it is now illegal for a creditor to withdraw a debtor’s paycheck from any bank account.
In other words, the law does NOT allow the creditor to legally withdraw the debtor’s paycheck from their bank account.
And if that happens anyway, the debtor must take steps to protect that paycheck.
The creditor is not required to inform the debtor in advance that he is going to seize the debtor’s bank account. Garnishment of a bank account always occurs without any notice being given to the person who owes the debt.
The creditor is only required to inform the debtor after the funds are frozen. However, the debtor must be notified immediately garnishment after it has occurred.
It is common for the debtor to find out that there has been a garnishment before the creditor or their bank notifies it.
Usually, the debtor completes a financial transaction (like writing a check or swiping a debit card) and the check is dishonoured, or their card is declined.
The debtor then calls the bank and is told that his account has been seized and his money is being held. Sometimes the debtor is told that “the funds are frozen”.
The funds will remain in limbo unless and until the debtor asks the court for a hearing to have the funds unfrozen and returned to the debtor.
If the debtor does not request a hearing, the creditor will be allowed to keep the funds.
The debtor’s bank will send the debtor a form with instructions on how to request a hearing.
If you want to see what notice the debtor will be sent, click here.
Unfortunately, the documents that will be sent to the debtor can be confusing and difficult to follow. If you examine the documents carefully, you will see that they say nothing about paychecks or salaries.
The documents do not inform the debtor of the illegality of what happened to the debtor’s paycheck.
If a debtor is at risk of losing their paycheck through this type of illegal garnishment, they must file a “request for hearing” and prove to the judge that the funds are wages/earnings; if the debtor proves that the funds are wages/earnings, the judge will order that the funds be returned to the debtor. KSA 61-3508(b).
If you are a debtor or know someone who is facing an illegal garnishment of their bank account–
please tell them about the Kansas Supreme Court decision and share with them the following form to request a hearing and collect their paycheck. Here is the proposal FORM Request for Hearing.
Kansas Legal Services, Inc. and our community of clients are grateful for the funding that made the Sievers possible case. This historic Kansas Supreme Court decision was made possible by funding provided in part by the City of Manhattan, Kansas, Social Services Advisory Council and partly by Community Development Block Grant Program for the city of Manhattan, Kansas.
Comments are closed.