Debtor’s Paychecks are Protected in Kansas from Bank Garnishments

You only have fourteen days to request a hearing if your paycheck is garnished out of your bank account - so don't waste time.

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 paycheckout of a bank account in garnishment 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 take a debtor’s paycheck from a bank account. This reversed a bad decision of the Court of Appeals.

If you want to read the Kansas Supreme Court’s opinion you can click here,  Stormont-Vail Healthcare, Inc. v. Sievers, 498 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 is granted against a person in a debt collection case, the plaintiff (also known as the creditor) will often seek the help of the court to collect the judgment/debt.

Unfortunately, the defendant (also known as the debtor) may have their bank account garnished.

Many debtors live paycheck to paycheck. It is important that the debtor know that now it is illegal for a creditor to take a debtor’s paycheck from any bank account..

In other words, the law does NOT allow the creditor to legally take the debtor’s paycheck out of their bank account.

And if it happens anyway, the debtor must take steps to protect that paycheck. 

The creditor is not required to notify the debtor in advance that they are going to garnish the debtor’s bank account. The garnishment of a bank account always happens without any advanced notice given to the person who owes the debt. 

The creditor is only required to notify the debtor after the funds are frozen.  However, the debtor must be notified immediately of the garnishment after it occurs.

It is typical for the debtor to find out there has been a garnishment before the creditor or their bank notifies them.

Usually the debtor conducts a financial transaction (like writing a check or a debit card swipe) and the check bounces or their card is declined.

The debtor then calls the bank and is told that their account has been garnished and that their 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 get the funds unfrozen and given back to the debtor. 

A debtor has to request a hearing within 14 days -- if not, the creditor gets to keep the funds.

If the debtor fails to ask for a hearing, then the creditor will be allowed to keep the funds.

The debtor’s bank will send the debtor a form document with instructions on how to request a hearing.  The form may be confusing, but the debtor needs to fill it out and get it back to the bank within 14 days, no matter what.

If you want to see what the notice that the debtor will be sent,click here.  The documents fail to inform the debtor of the illegality of what has happened to the debtor’s paycheck. 

Unfortunately, the documents that will be sent to the debtor may be confusing and difficult to follow. If you carefully review the documents, you will see they say nothing about paychecks or wages. 

We have a FORM Request for Hearing (attached below) that will make it perfectly clear that your paycheck must be protected. You still must file it within 14 days of the notice of the garnishment.

Use this fillable form instead of the form the bank sends you: FORM Request for Hearing.

This fillable form talks directly about the paycheck and requests that it not be illegally garnished.

If a debtor is at risk of losing their paycheck by this type of illegal garnishment they must file the FORM Request for Hearing form (attached) and prove to the judge that the funds are wages/earnings.

If the debtor proves that the funds are wages/earnings then the judge will order the funds released to the debtor. K.S.A. 61-3508(b).

If you are a debtor or you know of someone who is facing an illegal garnishment of their bank account--

please tell them about the Kansas Supreme Court’s ruling and share with them the following form to request a hearing and get their paycheck back. Here again is the suggested FORM Request for Hearing.

Kansas Legal Services, Inc. and our client community is thankful for the funding that made the Sievers case possible. This landmark Kansas Supreme Court decision was made possible by funding partially provided by the City of Manhattan, Kansas's, Social Services Advisory Board and partially by the Community Development Block Grant Program for the City of Manhattan, Kansas.

If you want to learn more about garnishment, go to Garnishment: What is it and How Can I Stop It?

 

 

 

 

 

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Posted: February 24, 2022