Editorial writer William Brewer is a bankruptcy lawyer who practices in Raleigh, NC and is a past President of the National Association of Consumer Bankruptcy Attorneys (NACBA).
The nation is finally and slowly emerging from the Great Recession – a period during which delinquency rates on consumer debts were five times higher than the rates during the previous five years. Simply put, many North Carolinians could not pay their debts because of lost jobs and fast-declining home values.
The result, not surprisingly, has been an explosion in lawsuits, especially by large national debt buying outfits that specialize in purchasing bad debts from the original creditors for pennies on the dollar and then trying to collect whatever they can.
The balance between the rights of these giant creditors to seize property from debtors and the rights of the debtors to keep property necessary to provide for their families is a delicate one. Those who have the ability to pay debts ought to do so. But, when confronted with the choice of paying a consumer debt like a credit card bill or providing for a family’s needs, family should come first. Unfortunately, the ability to put families first has been placed in jeopardy by the introduction of a wage garnishment proposal in the North Carolina Senate (Senate Bill 632) by Sen. Andrew Brock.
To understand the Senator Brock’s proposal, a little history lesson is helpful.
North Carolina law has long placed reasonable limitations on the right of a creditor who has successfully sued a debtor to seize his or her wages. Since 1870, state law has prohibited the seizure of such wages from the previous 60 days when it can be shown that the earnings “are necessary for the use for a family supported, wholly or in part, by his labor.”
Our courts have repeatedly upheld and applied this law to allow a debtor to protect 60 days of wages from his creditors, whether in the form of unpaid wages or wages received and in the bank, but only so long as they are necessary for the support of the debtor’s family. In other words, for almost 150 years, North Carolina has balanced the competing interests in this area by allowing a debtor to provide for his or her family.
Unfortunately, the new Senate proposal would destroy this balance by allowing a creditor to garnish 25% of a wage earner’s “disposable income,” which it defines as the debtor’s gross wages, minus taxes.
Let’s think about how this would play out in the real world. Consider a single mother with two children who earns $42,000 as a state employee. From her gross monthly pay of $3,500, $700 is deducted for taxes, $210 for retirement, and $200 for medical insurance, leaving her with take-home pay of $2,390. No one can dispute that she needs all $2,390 to support her family. However, Senate Bill 632 will allow a creditor to garnish an additional $700 from her pay, leaving her with only $1,690. The consequences will be devastating to her family.
As practical matter, the only refuge for such an unfortunate wage earner will be to file bankruptcy. But here’s the rest of the story: North Carolina has one of the lowest bankruptcy filing rates in the nation. For the first quarter of 2014, the national average for bankruptcies was 3.23 for every 1,000 people. North Carolina ranked 40th among the states with a rate of 1.82.
By contrast, the rates in our sister states in the southeast that allow wage garnishment along the lines of Senator Brock’s proposal are the highest in the nation. Tennessee is first with a rate that’s 350% of North Carolina’s. Georgia and Alabama are second and third with three times the North Carolina rate. Virginia has a rate 70% higher than North Carolina. South Carolina, which has no wage garnishment, has a filing rate 13% lower.
The conclusion from all this is inescapable: if the General Assembly and Gov. McCrory enact a law that dramatically expands wage garnishment in our state, bankruptcy filings will soar by 200-300%.
As a bankruptcy lawyer who has represented debtors for over 30 years, these statistics are not surprising to me. Contrary to conventional wisdom, people are not quick to file bankruptcy. Whether their reluctance emanates from embarrassment, a sense of defeat or simple personal morality, most will not file until they see no alternative; until they have to. For thousands upon thousands, expanded wage garnishment will provide the “have to.”