Writ of Garnishment

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The writ of garnishment enables a creditor to seize money owed to the debtor by third parties. Debts owed to the debtor include, for example, wages and salary owed by an employer, checking and savings accounts,  rental income, and money held in the trust account of the debtor’s attorney. Checking accounts are “debts” because they are demand accounts which means that the financial institution owes money on deposit to the debtor upon demand.

The garnishment statute includes complicated requirements and procedures. To get a writ of garnishment the judgment creditor files a short motion with the court with certain fees and deposits. The clerk will then issue the writ, and the creditor then serves the writ upon the garnishee (e.g., debtor’s employer, bank, stock broker etc.).

Florida Statutes include very detailed garnishment procedures. For example, the Statutes require that the creditor must provide the debtor within five days of issuance of the Writ, or within three days of service, whichever is later, with a copy of the creditor’s Motion for Writ of Garnishment, a copy of the Writ of Garnishment issued by the Clerk of Court, and a Claim of Exemption form.

The Claim of Exemption form gives the debtor notice of his right to assert a statutory exemption applicable to the money being garnished, such as a head of household exemption applicable to a wage garnishment. If the debtor believes his money or property is exempt from garnishment he can explain the exemption on the form and file the form with the court. The court will set a hearing on the exemption. The debtor expedite the hearing by scheduling a hearing time in coordination with the judge’s office and the creditor attorney.

If the debtor claims an exemption from garnishment the creditor then has three days from the date the debtor serves the claim of exemption by hand delivery or fax, and eight days if served by mail, to contest the exemption by statement made under oath. A Florida court held that the creditor itself, and not just the creditor’s attorney, must execute the exemption  contest.

The garnishee is required to file an answer to the garnishment within 20 days. The answer explains whether the garnishee holds any property or money belonging to the debtor. Within five days after service of the answer the creditor must provide the debtor with a copy of the garnishee’s answer and notice that the debtor has 20 days to move for a dissolution of the garnishment.

Sometimes the judgment creditor does not believe the garnishee’s Answer. For example, the Answer may state that the garnishee is not indebted to the debtor or holds no property of the debtor, but the creditor believes otherwise. In that event, the creditor may challenge the garnishee’s response to the Writ by filing a Reply denying, or “traversing” the contents of the Answer. The court will set the matter for a hearing to determine whether the Answer is correct or not.

Garnishment procedures are strictly construed. The debtor may file a motion to dissolve a garnishment for any of several reasons including an assertion of an exemption or procedural defects in the administration of the Writ.

Often a debtor finds that an exempt account is frozen by a judgment creditor’s writ of garnishment. This happens because creditors garnish banks, not bank accounts. A creditor may without penalty serve a writ of garnishment on any bank where the debtor maintains an account even if some, or all, of the debtors accounts are exempt from garnishment. The debtor must either convince the creditor to free the exempt account or seek a court order upholding the exemption and dissolving the garnishment.

There are a small number of financial institutions whose accounts may not be garnished. The only sure way to avoid writs of garnishment against  both exempt and non-exempt financial accounts is to hold money in financial institutions which by law cannot be subject to garnishment writs.

 

 

Jon Alper

About Jon Alper

Jon is an attorney focusing on bankruptcy and asset protection in Orlando, Florida.