Yes, wages can be garnished

In the jurisprudence published in the year 2014in the gazette of the Judicial Weekly of the Federation, with digital registration 2006672, located on the site https://sjf2.scjn.gob.mx/detalle/tesis/2006672, the Second Chamber of the Supreme Court of Justice of the Nation determined that: “…a authority jurisdiction can order the embargo on the surplus of the amount of the minimum wage for the insurance of civil or commercial obligations contracted by the worker, with the understanding that this measure only applies with respect to 30% of said surplus…”

Now, last Friday, April 12, 2024, in the same judicial gazette, the relevant thesis issued by the Second Collegiate Court on Civil and Labor Matters of the Twenty-First Circuit was published, in which it determined that: “…when in a commercial executive trial HE embargo he salary of the defendant to guarantee the payment of the claimed debt, in the absence of identification of any movable or immovable property, there is a presumption about its vulnerability, so the default interest must be reduced to the minimum percentage that may be payable…”

That is to say, this thesis provides that in addition to the fact that in the case of salary, only 30% of the surplus of the vital minimum can be seized, to protect the worker, when the debt includes conventional default interest, these must be regulated by the judge, to If applicable, reduce them according to the lowest rate permitted by law, regardless of whether said interests have been agreed to be higher.

To give an example, the Commercial Code establishes a legal interest of 6% per year in the event of default (art. 362 CCom), so, if the debt arises from a commercial procedure, even if the default interest has been agreed between the parties at a higher rate, if what guarantees payment of this is the salary of the defendant, the judge will have to lower them to the legal minimum.

This important criterion has its origin and cause in “…a commercial executive lawsuit in which the plaintiff claimed payment of a credit instrument. The defendant in the summons and seizure procedure recognized the signature on the promissory note as hers, but said that he had already covered that amount and only the payment of some interest remained; He did not indicate any assets for seizure, so this was carried out on the salary he has as a primary school teacher. The responsible authority sentenced the defendant to pay the principal amount and default interest, the latter being reduced in accordance with the parameters suggested by the Supreme Court of Justice of the Nation…”

The Second Collegiate Court on Civil and Labor Matters of the Twenty-First Circuit considered that, notwithstanding “…the First Chamber of the Supreme Court of Justice of the Nation, in jurisprudence thesis 1a./J. 47/2014 (10a.), established a series of parameters that serve as a guide to objectively evaluate the notoriously excessive nature of an interest rate and thus be able to reduce them, the truth is that these parameters are not an exhaustive or immutable catalog, but rather a group of guides stated exemplarily, whose number and combination may vary according to the particularities of each case, which is why in cases in which the salary of the defendant is garnished to cover the debt claimed, due to the lack of indication of any asset that serves to respond for the debt, given the presumption of vulnerability, default interest must be reduced to the minimum payable percentage…”

Giving rise with this to the transcendent thesis of the field: DEFAULT INTERESTS IN COMMERCIAL MATTERS. WHEN IN A TRIAL THE DEFENDANT'S WAGE IS ATTACHED TO GUARANTEE THE PAYMENT OF THE CLAIMED DEBT, IN THE FAILURE TO INDICATE SOME MOVABLE OR IMMOVABLE PROPERTY, THERE IS A PRESUMPTION ABOUT ITS VULNERABILITY, SO THEY MUST BE REDUCED TO THE MINIMUM PAYABLE PERCENTAGE (LEGISLATION OF THE STATE OF WARRIOR).

It is interesting to see how in areas of law of a dispositive nature such as civil and commercial, the State comes in to protect the rights of those considered most vulnerable, imposing the rules of social law, matters that usually excluded one another, but that in current events come together in harmony, in search of the common good.

As always, a pleasure to greet you, hoping that these few letters have been to your liking and, above all, useful. Until next time!

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Graduate in law from the Sinaloa Free School of Law, master in constitutional law and amparo and master in commercial and business law, with honorable mention, from the Universidad Panamericana, Guadalajara campus. He graduated with honorable mention from the postgraduate courses in civil and commercial procedural law, law of obligations and contracts and tax law taught by the Universidad Panamericana, Guadalajara campus and is a specialist in the areas of administrative, civil, family, commercial, agrarian, protection. , notarial and corporate. He is studying the AD2 Senior Business Management program at IPADE. He is director of the legal services company LMA, Integradora Legal, based in Culiacán and Mazatlán. Member of the Mexican Bar Association, AC, he was president of the steering committee and founder of the Sinaloa chapter, and currently a member of the national council of said association, he also belongs to the American Bar Association. He is a professor at the Sinaloa Free School of Law, and serves as an advisor to the advisory council of the State Human Rights Commission of the State of Sinaloa. He was secretary of agreements of the First Criminal Court of La Paz and external legal advisor and Interim Secretary of the City Council of the Municipality of Rosario.

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