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IF YOU ARE A CREDITOR, YOU SHOULD CONSIDER A WAGE ATTACHMENT AS A WAY TO RECOVER YOUR MONEY

Posted by David Katz | Jul 06, 2019 | 0 Comments

A. ONE OF THE MANY CREDITOR'S REMEDIES IN MASSACHUSETTS IS A WAGE ATTACHMENT BUT IT COMES WITH MANY RESTRICTIONS AND STRINGS ATTACHED.

Wage attachment in Massachusetts is one mechanism by which a creditor can enforce its judgment. In Massachusetts, unlike other jurisdictions, it is an absolute prerequisite that a creditor be a judgment creditor and not merely a non-judgment creditor before that creditor can attach a debtor's wages. Wage attachment in Massachusetts is subject to the provisions of G.L.c.246, section 28.. In Massachusetts, the term of art is "wage attachment" and not "wage garnishment" which is the term used in other jurisdictions and by the federal goverment..

B. Under G.L.c. 246, section 28, a creditor has to undertake the following steps in order to get a wage attachment.

1. You need a judgment and then a court order to attach a debtor's wages without any exception. On many occasions, I have been asked by clients if I can they can attach a debtor's wages during the prejudgment phase of a case. My answer is always no. Massachusetts creates this hurdle for a creditor as a way to protect working individuals from wrongful or excessive wage attachments. 

2. There are a number of  articulated exemptions to the wage attachment statute.  As there are several exemptions in the statute it would be wise to know what they are before you proceed.  For example, Social Security under federal law is exempt and can only be attached for child support, federal income taxes and a small other debts owed the federal government. Pensions and retirement benefits are also exempted. In particular, Massachusetts exempts public employee pensions from the grasp of a creditor's wage attachment. Several forms of public assistance or benefits are exempted such as worker's compensation, aid to families with dependent children, veteran's benefits, and assistance to the elderly or disabled.

3. Are there other exemptions to the wage attachment statute? Yes, there are. Benefits coming from fraternal societies, disability benefits up to $400.00 per week, group life insurance, group annuity policy benefits, life insurance policies whose terms prohibit the proceeds to be used to pay creditors and life insurance policies where the beneficiary is any married woman. On this last exemption, it is interesting to note that the insured female does not have to be the insured's spouse. 

4. One area where a creditor may get around the various exemptions is if the debtor is getting money from non-wage, non-salaried sources of income. The statute only deals with earned wages through salaried employment and does not reach a situation where the debtor has income drawn from non-wage or non salaried sources ( i.e.independent consulting fees).

5. Assuming the money  to be attached does not fall into one of the exempted categories, how much can a creditor attach? Assuming that there is no exemption to deal with the next hurdle to jump over is the amount that you as a creditor are entitled to attach. Under Massachusetts statute, only the first $125.00 per week of disposable income is exempt from garnishment which means that everything over and above that amount  up to 15% can be attached up to a total of $6,000.00 a year. One of the key issues here is determining disposable income. Usually  when one determines disposable income it is that  income that remains after the payment of health insurance, rent or mortgage, food, transportation and the like. Under Massachusetts law, however, disposable income is measured by what money remains after payment of all payroll  deductions that  might apply in any given situation. Also, child support payments will factor in to the disposable income definition if there is a child  support order in place.

The Massachusetts percentage limits of 15% are stricter than those limits applied under federal law of 25%. The public policy reason behind the percentage rule whether it be the federal percentage or the stricter Massachusetts limit is that while the law wants to allow judgment creditors to satisfy their judgments, at the same time, the law realizes that salaried workers, in particular, require that a certain amount of their wages be maintained in order to sustain their living expenses.

6. The wage attachment statute also sets out a procedure for obtaining wage attachments when a debtor is in bankruptcy. Also, if someone is default on a student loan, the U.S.Department of Education and its agencies can attach wages without first getting a court judgment. This is called a federal administrative garnishment.

7. Under Massachusetts law, a creditor has 20 years to enforce any  judgment which would include enforcement by wage attachment. In many cases, enforcing a judgment through a wage attachment may, at first, seem like a feasible thing to do as a creditor. When the exemptions and limitations are taken into consideration, however, a wage attachment may more of a burden than a benefit. This is particularly true if the debtor is a low wage individual. On the other hand, the Katz Law Group has attached wages of present and former executives of companies, as examples, who defaulted on their personal corporate guarantees. In these situations, a wage attachment turned out to be an effective remedy to enforcing a judgment because there was a "pot at the end of the rainbow." Again, the effectiveness of the wage attachment remedy is dependent upon the particular circumstances present in any given case. In some cases, we have sought wage attachments and combined those efforts with seeking attachments of either bank accounts or real estate.

At the Katz Law Group, we have the skill set, creativity and experience to know whether a wage attachment is the best remedy for your particular case. Please give us at 508-480-8202  to discuss your particular situation and to decide if a wage attachment is the best way for you to recover your money.

About the Author

David Katz

Attorney David S.Katz is the founder and managing partner of the Katz Law Group, P.C., located in Marlborough, Massachusetts...

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