Friday, November 30, 2012

Legal research and writing for the non-lawyer: Rules of citation

The easiest way to win a legal argument and to convince a judge to do what you want is to find a respected authority who has already decided and discussed the same legal issue favorably to you, in writing. For this reason, legal briefs and arguments are peppered with quotes and references from statutes, court decisions, regulations and law review articles, to name a few of the more important types of authority commonly used.

To be effective and verifiable, each of these references must be accompanied by a clear indication of the original source material, that is to say, a citation.

For example: Pierson v. Coffey, 706 S.W.2d 409, 413 (Ky.App. 1985)

This is a standard citation to a specific opinion of the Kentucky Court of Appeals, in the format preferred in the Kentucky court system. By looking at this citation, any lawyer or judge would immediately know where to find this court opinion to read it for herself. State court systems and the federal courts each have their own way of citing statutes, court cases and every other thing imaginable, and they have rules for proper citations. That is a lot of different rules.

Every lawyer and law student is familiar with The Bluebook, A Uniform System of Citation®, which is a collection of all the rules of all the different jurisdictions. The Bluebook is comprehensive, it is updated frequently, it is expensive, and it is unnecessary for self-help legal purposes. The Bluebook is for professional use.

Do-it-yourself law for non-lawyers does not need such comprehensive detail. You can often Google a state name along with "rules of legal citation" to find the information you need for your state online, for free. For example, Delaware's rules for citation are available online - Guide To the Delaware Rules of Legal Citation.

If you cannot find the rules for your state, there is an excellent beginner's substitute for the Bluebook offered by the Legal Information Institute at Cornell University. It is available online, Introduction to Basic Legal Citation, and it is also offered for download in three different e-book formats.

Wednesday, November 28, 2012

What's the maximum amount of wage garnishment?

The Federal Consumer Credit Protection Act of 1968, as amended in 1977, set national restrictions on wage garnishment, applicable in each of the 50 states. Some states have established greater restrictions, but none may allow lesser restrictions. So, the maximum amount that may be garnished from wages under Federal law is the maximum everywhere in the United States even though the individual states are allowed to provide a lower maximum, and many have done so. In other words, the states may be more debtor-friendly than the Federal law, but they cannot be less so.

The relevant Federal statute is found at 15 USC § 1673 - Restriction on garnishment. "No court of the United States or any State, and no State (or officer or agency thereof), may make, execute, or enforce any order or process in violation of this section." - 15 USC § 1673(c).

Different types of debt - different limits

These Federal law restrictions on wage garnishment do not apply to:
(1) The collection of any Federal or State tax, and;
(2) Orders of a United States judge in a Chapter 13 Bankruptcy proceeding.
        - 15 USC § 1673(b)(1)(B and C).

This Federal statute envisions two different type of debt, and it imposes different limits on wage garnishment for each type, with a few variations:
  1. Court ordered support payments, and;
  2. All other debts.
With either type of debt, wage deductions required by law are subtracted before any garnishment calculation is made. Examples of legally required deductions are federal, state and local income taxes, Medicare tax, Social Security contributions and the employee portion of state unemployment compensation insurance.

Deductions that are not required by law do not count to reduce your disposable income. These include union dues, life and health insurance and most retirement plan contributions.

In short, earnings - taxes = disposable wages subject to garnishment.

Wage garnishment for court ordered support payments

The rules are different depending upon two factors:
  1. If the support payment is more than 12 weeks past due, and;
  2. If you are providing support for a spouse or dependent child in addition to the person covered by the support order.
There are four different combinations of these two factors, and they each have different rules.
  • Support payments 12 weeks past due and no other support obligation
    - 65% of disposable wages may be garnished.
  • Payments 12 weeks past due with another support obligation
    - 55% of disposable wages may be garnished.
  • Support payments up-to-date and no other support obligation
    - 60% of disposable wages may be garnished.
  • Support payments up-to-date with another support obligation
    - 50% of disposable wages may be garnished.

Wage garnishment for all other debts

For all other debts, the maximum wage garnishment amount is 25% of disposable income or thirty times the Federal minimum wage on a weekly basis, whichever is less. It's not that complicated.

Right now the Federal minimum wage is $7.25 per hour. That times thirty equals $217.50 for one week. If your disposable income for one week of work is less than $217.50, then none of it may be garnished to pay general debts.

If your disposable income for one week of work is greater than $217.50, then it is necessary to solve two simple arithmetic problems and then to compare the results.

First, subtract $217.50 from your weekly disposable earnings.

Second, multiply your weekly disposable earnings by 0.25.

Then, whichever is LESS, that's the maximum amount that can be garnished.

Of course, this is all based on weekly earnings. If you get paid once every two weeks or on some other payment schedule, you have to make adjustments.

And remember, different states may offer lower maximums and other types of exemptions.


Tuesday, November 27, 2012

Kentucky Consumer Protection Act

The full statutory text of the Kentucky Consumer Protection Act (KCPA) can be found at Kentucky Revised Statutes (KRS) Chapter 367, sections 367.110 to 367.360. 

The statement of Legislative intent is contained in KRS section 367.120:
"The General Assembly finds that the public health, welfare and interest require a strong and effective consumer protection program to protect the public interest and the well-being of both the consumer public and the ethical sellers of goods and services;  toward this end, a Consumers' Advisory Council and a Division of Consumer Protection of the Department of Law are hereby created for the purpose of aiding in the development of preventive and remedial consumer protection programs and enforcing consumer protection statutes."
Kentucky's Consumer Protection Act provides that “unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.”  KRS 367.170(1).

KRS 367.220(1) authorizes private civil actions to "recover actual damages" suffered "as a result of the use ... of a method, act or practice declared unlawful by KRS 367.170."

A significant piece of this statute is the provision in KRS 367.220(3) for attorney's fees.
"In any action brought by a person under this section, the court may award, to the prevailing party, in addition to the relief provided in this section, reasonable attorney's fees and costs."
As attorney A. Nicholas Naiser points out:
"Accordingly, while plaintiffs’ attorneys should always consider the KCPA before filing a complaint because of the potential for attorneys’ fees, it is important to research judicial interpretations of the KCPA to ensure that such a claim is viable."Kentucky Tort Law Blog, What is the Kentucky Consumer Protection Act?
It must be pointed out that this attorney fee provision is a two-edged sword. Since there is no guarantee of ultimately being the "prevailing party," the person filing the lawsuit could end up being the one who pays the other side's legal fees.

Monday, November 26, 2012

Across state lines

Every court in the United States operates under geographic limits to its power and authority, or its "jurisdiction." A state court in Utah, for example, has no authority over a private person residing in Alabama who stays in Alabama and who does not conduct any business in Utah. Sometimes the question of a state's jurisdiction over people living elsewhere can be very complicated.

 But, you can always be called into court in the state where you live.

 The question is, what about when you get sued in one state but you move to another state before the money judgment in the first state is paid off? Will the judgment follow you around the country wherever you go?

 The short answer is "yes."

 It is not quite automatic, but it is cheap and easy for a judgment creditor to register a judgment from one state court in a different state. At last count, 47 states and several U. S. Territories have enacted the Uniform Enforcement of Foreign Judgments Act. In this usage "foreign" means a different state in the U. S., not a foreign country. Even in those few states that have not adopted the Uniform Act, there are other procedures that allow debt collections to follow you around the country. Further, a handful of states have slightly modified the Uniform Act to exclude the automatic importation of default judgments. Check your local statute.

 Keep in mind that an order of wage garnishment is not the same as a judgment, but its effect depends upon the geographic location of the employer, and not the location of the debtor-employee.

Sunday, November 25, 2012

A checklist for the wage garnishment debtor

There are few things in life more insulting, embarrassing and shocking  then to have your wages garnished. Even if you know that it's coming, or suspect the possibility, it is still a big shock when it happens. The universal question is, "What can I do about it."

The first priority is to get informed, both about the law and the facts.

The first understanding is in the United States there are a few Federal wage garnishment laws that apply to every state, but the main legal provisions are based upon State law, and the laws are very different from one State to the next. So, the Federal wage garnishment laws apply everywhere in the United States no matter where you live and the State wage garnishment laws apply depending upon where you live, where you work and where your employer does business. See the limits on wage garnishment put in place by Federal law: What's the maximum amount of wage garnishment?

The second understanding is that different wage garnishment rules apply depending upon the type of debt that's being collected. A wage garnishment for a credit card debt is different from a garnishment for a child support debt, for example. There are several other types of debt, with differing garnishment rules, in addition to these.

An important third understanding is the availability of free or low-cost legal services. Legal Services Corporation lists affiliates in each of the fifty States and the District of Columbia. In order to qualify for free legal assistance from a program funded by LSC, you must not have income and assets over a certain level. The programs only accept cases that fall within its established priorities, which may or may not include wage garnishments. But, you must contact your local program directly to find out if you meet the eligibility guidelines and if your legal problem is among the program's priorities for services. If your local program is unable to help you directly, they may be able to suggest other useful resources in your area.

The final understanding is that you can always do it yourself, without a lawyer. You have a Constitutional right to represent yourself in court. Some cases are simple and others are complex. Some of the more complex issues of garnishment law involve debtors, employers and creditors in different states. See: Can garnishment follow you Across State Lines?


A. Basic information you must have:
  1. The name of the court that ordered wage garnishment and the court identification number for your garnishment. 
  2. The name of the garnishment creditor and its lawyer. You need contact information.
  3. The source of the debt being collected. This usually involves a prior lawsuit and court judgment against you. It is useful to have all the details about that prior lawsuit too. It might have been in a different court, or even in a different state. What is the total amount owed? What is the interest rate you are now being charged on this amount?

B. Options:
  1. Pay the whole debt, plus interest, in full.
  2. Seek bankruptcy protection.
  3. Take the required steps to claim optional State law exemptions, if any are available.
  4. Seek to invalidate or set-aside the prior judgment.
  5. Negotiate a voluntary payment plan that does not involve wage garnishment.
  6. Seek to have the amount of the garnishment reduced for hardship reasons.