What is a Writ of Garnishment?
A writ of garnishment under Florida law is a tool that allows a creditor to seize money owed to the judgment debtor by third parties. Often this is referred to as a bank account garnishment, but it does not only apply to banks. 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.
Garnishment Rules and Procedures
Florida garnishment law includes complicated requirements and procedures. Garnishment procedures are strictly construed. The debtor may file a motion to dissolve a garnishment for any procedural defect in the creditor’s administration of the Writ. It is important to understand Florida’s detailed garnishment procures.
To get a writ of garnishment the judgment creditor files a short motion with the court and pays certain fees and deposits. The clerk will then issue the writ. Then the creditor serves the writ upon the garnishee. The garnishee is the person or company that owes the judgment debtor money (for example, the debtor’s employer, bank, stock broker etc).
The Florida Statutes require that the creditor must provide the debtor 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 within five days of issuance of the Writ, or within three days of service onto the garnishee, whichever is later.
Florida Garnishment Statute
The Florida garnishment statute is codified in Chapter 77 of the Florida Statutes. In particular section 77.03 provides:
- After judgment has been obtained against defendant but before the writ of garnishment is issued, the plaintiff, the plaintiff’s agent or attorney, shall file a motion (which shall not be verified or negative defendant’s exemptions) stating the amount of the judgment. The motion may be filed and the writ issued either before or after the return of execution.
The key section for the Florida garnishment statute that provides procedural deadlines for the creditor and allows a judgment debtor to file for an exemption is found in section 77.041.
The garnishee is required to file an answer to the garnishment within 20 days. The garnishee’s 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.
Florida garnishment exemptions allow judgment debtors to exempt certain funds from both a regular garnishment and a wage garnishment. Florida law establishes a specific procedure for a judgment debtor to claim his or her garnishment exemptions.
When the judgment debtor believes the garnished property is legally exempt from collection, the debtor or his attorney can file with the court a claim of exemption. The garnishing 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 debtor’s claim of exemption. Florida law provides that the creditor’s contest of the garnishment exemptions must be based on facts asserted under oath.
The Claim of Exemption form gives the debtor notice of his right to assert a garnishment 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 claim of exemption. The debtor can expedite the hearing by scheduling a hearing time in coordination with the judge’s office and the creditor attorney.
The key thing to understand is that Florida garnishment exemptions are not automatic. If a garnishment exemption applies to you, you must assert it properly by timely filing the claim of exemption or motion to dissolve the garnishment. Eventually you may need to present evidence that you qualify for the exemption claimed.
Bank Account Garnishment
What happens with a bank account garnishment in Florida? 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 debtor’s accounts are exempt from garnishment. Florida law protects banks that freeze exempt accounts in response to garnishment writs with limited exception. The debtor must either convince the creditor to free the exempt account or seek a court order upholding the exemption and dissolving the garnishment.
If your bank account or wages have been garnished through a Florida writ of garnishment, you may be able to get the garnishment dissolved. The law sets many strict requirements for garnishment, and if the creditor does not strictly follow the law then the garnishment can be dissolved. If you’d like to discuss your garnishment or need representation in your case, give us a call to schedule an appointment.