If an individual fails to pay back a loan or another extension of credit, then creditors may try to take back the debt forcibly. Creditors have a number of legal means of doing this. Among them is the garnishment of the individual's wages and the freezing and seizure of his bank account. However, in some cases, money deposited in a bank account cannot be taken by legal force.
If you are unable to cover your daily expenses following an order of garnishment, the chances are good that the creditor will be unable to secure this legal judgment against you.
Garnishment Versus Freezing a Bank Account
Garnishment is when an individual has some of his wages or other form of income seized before they can be given to him. This is done after the creditor has been awarded damages in a civil court and presented the debtor's employer or other provider of income with a order of garnishment. The employer then stops the amount due to the creditor from each monthly wage check. An account is frozen in much the same way. Now, it's the individual's bank that is presented with an order to freeze the account and, sometimes, to let the creditor take out funds.
Debtor Must Pass a Means Test
Some bank accounts cannot be frozen, nor can some individuals have their wages garnished. In many states, to have a person's wages garnished or to have his account frozen, the individual must first pass a means test. This will measure the size of the person's income and assets. If the person does not make enough relative to his expenses, particular those related to the care of dependents, he may not be subject to garnishment or account freezing. Means tests vary by state. The court will apply the relevant means test before it makes an order for garnishment.
Certain Assets are Exempt
Certain types of income cannot be garnished or frozen in a bank account. Foremost among these are federal and state benefits, such as Social Security payments. Not only is a creditor forbidden from taking this money through garnishment, but, after it has been deposited in an account, a creditor cannot freeze it. If he does, the debtor can have the freeze order reversed by explaining to a judge that the frozen funds are derived from federal benefits.
Rules Regarding Foreign Bank Accounts
A bank is only obligated to comply with a freeze order if the judge who orders the freeze has legal jurisdiction over the banks actions. Offshore banks – banks headquartered in foreign countries – are not obligated to comply with freeze orders issued by U.S. judges, as U.S. law does not apply to other countries. So, certain accounts held with foreign banks cannot be frozen.
Michael Wolfe has been writing and editing since 2005, with a background including both business and creative writing. He has worked as a reporter for a community newspaper in New York City and a federal policy newsletter in Washington, D.C. Wolfe holds a B.A. in art history and is a resident of Brooklyn, N.Y.