The vast majority of landlords choose not to pursue their former tenants for unpaid rent, late fees, unpaid utilities, damages to the apartment beyond ordinary wear and tear, and other related charges associated with the tenancy. Most landlords liken such a task to squeezing blood from a stone. Often it is the wiser choice to not pursue the tenant for money owed and to move forward with re-renting the premises to a more reliable tenant. In what will likley be a six part series, I am going to outline the various collection procedures available to landlords who do choose to pursue tenants for money owed and highlight the pros and cons of each, beginning with wage garnishment.
Initial hurdles to obtaining a wage garnishment
A wage garnishment is the withholding of a portion of a debtor’s wages that are used to payoff a judgment. To pursue garnishment of a debtor’s wages, a landlord must first get a judgment for damages against the tenant. “Damages” is a general legal term which encompasses unpaid rent, late fees, unpaid utilities, damages beyond ordinary wear and tear to the apartment, pet fees, and anything else that the tenant may owe and that a court awards to the landlord. You will notice that in defining “damages” I referred to damages beyond ordinary wear and tear to the apartment. Sometimes when I refer to damages in the legal sense of everything that a tenant owes, landlords confuse that with damages to the apartment. Both uses of the term are proper.
To get a judgment (a court order stating that the tenant owes a certain amount of money), a tenant has to be properly served with a summons and a complaint. A landlord will often pursue a tenant for money damages after the landlord has evicted the tenant from the premises. Proper service for an eviction does not always equate to proper service for a damages judgment. Ohio law only requires that the summons and eviction complaint be left at the rental premises for the purposes of evicting individuals at that premises. The bailiff will accomplish this service by merely posting the summons and complaint on the door of the rental premises. Although service by posting is good service for evictions, it is not good service for a damages action.
Prior to filing an eviction complaint, a landlord must serve a three day eviction notice on the tenant. The eviction notice demands that the tenant vacate the premises within three days or face eviction proceedings. Although the tenant may not leave in three days, he may leave at some point after the three days but before the bailiff posts the summons and complaint on the front door of the rental unit. Let’s say that the tenant does just that; he leaves on a day after the three day notice expires but before the bailiff has posted the summons and complaint. Having moved out, the tenant will never know that an eviction action has been filed against him (unless service of the summons and complaint was made in another manner, for example, via ordinary mail and the tenant has forwarded his mail to his new address). Technically, the eviction action is against the property and not the person. The landlord is trying to take the property back. Service by posting the summons and complaint is thus sufficient to get possession of the property returned to the landlord.
The eviction complaint may contain a second cause of action for damages against the tenant. A damages action is against the tenant and not the property. Service by posting to the property is not sufficient in an action for money damages agaisnt a person. The tenant must be made aware of the damages action against him and must have an opportunity to respond. With all that said, a major obstacle to obtaining a damages judgment against a former tenant is getting proper service of the summons and complaint containing the damages action upon the former tenant. In order to get proper service upon a former tenant, you must do so at the address of the rental unit if the tenant still resides there or you need to obtain the most current address of the tenant if the tenant has moved from the rental unit. Often landlords don’t have any idea where their former tenants are residing. A good place to start is my article on using the internet to track down former tenants.
Once proper service is obtained, a court can render a judgment against a tenant for money damages. Of course, it’s up to the landlord to prove to the court the damages owed. A judgment is just a piece of paper saying that the tenant owes the landlord a certain amount of money. A tenant can ignore that piece of paper and refuse to pay. It’s up to the landlord to enforce the judgment against the tenant. One way to enforce that judgment is through a wage garnishment.
Pros and cons of a wage garnishment
A tenant must be gainfully employed in order to garnish his wages. A landlord must be aware of that employment in order to garnish a tenant’s wages. The court will not verify the tenant’s employment information. It’s up to the landlord to find out where the tenant is employed and verify that information. The landlord is left to do the legwork concerning where the tenant is employed. It’s not uncommon for a tenant who has just been evicted to have also just lost his job. Generally, such an event can explain why the tenant failed to pay rent.
Similarly, it is not uncommon for a tenant who has just been evicted to lose his employment after the wage garnishment has begun.
It is also likely that a tenant who has been garnished may have other judgment creditors out there who want to garnish his wages as well. A garnishment in Ohio is good for 182 days. After that point, another judgment creditor is free to file a wage garnishment and supersede your garnishment. If that happens, you have to wait 182 days in order for your garnishment to once again take priority over the other garnishment (generally, you must file a new wage garnishment proceeding against the tenant).
Finally, it may take some time for the wage garnishment to pay off the judgment amount. You are limited to garnishing about 25% of a tenant’s net wages. On the flip side, the landlord obtains the advantage of every paycheck being garnished. If the former tenant is paid every two weeks, then the tenant’s employer must withhold wages from every paycheck. The employer submits those wages to the court and the court pays them out to the landlord or to the landlord’s attorney. Although the landlord’s judgment rarely gets paid off immediately, it is often paid off more quickly than expected and the amount garnished never touches the tenant’s hands.
Wage garnishment is often the best means of collecting upon a judgment because of the very nature of the wage garnishment process. It’s an automatic deduction from the tenant’s paycheck and that deduction goes straight to the court which, in turn, transfers it to the landlord. It’s fairly inexpensive. Franklin County charges $85 to process a wage garnishment. It’s also fairly immediate. Once the judgment is obtained and the proper garnishment paperwork is filed, wage garnishments can start within two weeks.
Other forms of collecting upon a judgment include bank account garnishment, vehicle execution, placing a lien on real estate, and attachment of cash drawer funds. My next article on the collection process will delve into bank account garnishments.