Bankruptcy Law Questions? Ask a Bankruptcy Lawyer Now.
Hello and thank you for allowing me the opportunity to assist you. Before I can adequately answer your question, I need a little more information.
Can you clarify why you’re filing an adversary proceeding with regard to student loans? I’m unclear of what you’d be seeking.
Thanks for the additional information. It does look like you have a good argument to have your student loans discharged due to financial hardship. With regard to your original question, filing for bankruptcy will temporarily stop the garnishment because of the automatic stay. However, the act of filing an adversary proceeding alone will not stop the garnishment. Therefore, if you’re reopening a past bankruptcy in order to file the adversary proceeding, then your wages may still be garnished. If you’re filing the bankruptcy now, then the automatic stay should stop the wage garnishment.
In order to stop the wage garnishment with the automatic stay, you should be sure to send your bankruptcy filing to the creditor who is garnishing your wages. You may also wish to send it to your employer, though it shouldn't be necessary since the creditor should immediately stop the garnishments.
Have I satisfactorily addressed your concerns? If not, then please feel free to ask for clarification.
DISCLAIMER: Please understand that the complexities of most legal problems cannot be adequately addressed in this setting, and that I am only licensed to practice law in the state of Maryland. Accordingly, you acknowledge (1) that we have not formed an attorney-client relationship, and (2) that my post is general information only and not specific legal advice.
You Wrote: “I am not filing bankruptcy and have not had a bankruptcy only advesary proceeding”
My Response: Now I’m confused. An adversary proceeding is a lawsuit within a bankruptcy. There is no such thing as filing an adversary proceeding outside of a bankruptcy. The only way to have your debts discharged is with a bankruptcy, and the only way to have your student loans discharged is with an adversary proceeding within a bankruptcy. Does that make sense?
You Wrote: “I understand that the advesary proceeding is a special form of bankruptcy.”
My Response: Unfortunately, your understanding is not correct, and that seems to be causing the confusion. An adversary proceeding is not a special form of bankruptcy. As I mentioned in my other post, an adversary proceeding is a lawsuit within a bankruptcy. Therefore, in order to file an adversary proceeding, you must first file for bankruptcy (most likely a Chapter 7 or 13).
Once you file for bankruptcy, there will be a "stay" on all collection activity of your debts, including garnishments. This means that the garnishment must stop. Since student loans are not ordinarily discharged in bankruptcy, you will need to file an adversary proceeding (i.e. the lawsuit within the bankruptcy). In the adversary proceeding, you will need to prove to the bankruptcy judge that paying your student loans present an undue hardship. If the judge agrees, then your student loans will be discharged when your bankruptcy is complete.
Certain types of disputes cannot be handled by motion in the bankruptcy case, but instead require the commencement of an adversary proceeding. Federal Bankruptcy Rule 7001 lists types of actions that require an adversary proceeding. Adversary proceedings are governed, for the most part, by Part VII of the Federal Rules of Bankruptcy Procedure. These rules incorporate most of the Federal Rules of Civil Procedure and are designed to make practice before the bankruptcy and district courts as similar as possible."
The discharge of student loans is one type of dispute that cannot be handled by motion in the bankruptcy court, and therefore, must be handled by adversary proceeding.
I hope this is clearer now!
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).