What Is a Writ of Garnishment?
A Florida writ of garnishment is a court order that allows a creditor to legally take a portion of a debtor’s wages, bank account funds, or other assets to satisfy an unpaid debt. A writ of garnishment is used when a debtor fails to voluntarily pay a judgment or outstanding debt.
The writ of garnishment is the most common collection tool in Florida. One of the first things a creditor garnishes is a bank account. Bank accounts are “debts” because they are demand accounts; the financial institution owes money on deposit to the debtor upon demand.
Understanding Writ of Garnishment in Florida
Here’s how a writ of garnishments works. A creditor may initiate garnishment actions after the court enters a judgment and a writ of execution. Florida garnishment statute section 77.041 imposes procedural rules and deadlines for the creditor, and it allows a judgment debtor to contest the garnishment. The statute provides that a creditor begins the garnishment process by filing a short motion with the court (“Motion for Writ of Garnishment”) and paying fees and deposits to the clerk of court. The clerk then issues the writ.
The judgment creditor is not required to seek a judge’s permission or a court order. Next, 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, stockbroker, etc.).
Florida garnishment law requires the creditor to provide the debtor with a copy of the creditor’s motion, a copy of the Writ of Garnishment issued by the clerk of the court, and a Claim of Exemption form within five days of the clerk’s issuance of the writ, or within three days of service onto the garnishee, whichever is later.
Florida Garnishment Statute
The Florida garnishment statute is Chapter 77 of Florida statutes. The law sets forth procedures, rules, and defenses of garnishments.
Creditors must strictly comply with all garnishment statutes, including properly completing and mailing legal papers and complying with several deadlines. The debtor may dissolve a writ of garnishment if there is a procedural defect in the creditor’s prosecution of the writ. Both creditors and debtors need to understand Florida’s detailed garnishment procedures.
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Garnishee Response to Writ of Garnishment
The garnishee (such as a bank) must file an answer to the garnishment within 20 days. The garnishee’s answer states whether or not 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 a 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, and the creditor believes otherwise. In that event, the creditor may challenge the garnishee’s answer to the writ by filing a reply denying, or traversing, the garnishee’s answer. The court will set the matter for an evidentiary hearing to determine whether the garnishee’s answer is factually correct.
Exemptions to a Writ of Garnishment
Florida exempts several types of debtor assets from a writ of garnishment. Examples of Florida garnishment exemptions include the head of household exemption applicable to wage garnishment, or an exemption to garnishment of a bank account holding social security proceeds.
The garnishment statute includes procedures for a judgment debtor to claim their garnishment exemptions. The debtor must strictly follow these exemption procedures to defend against a writ of garnishment of exempt money.
When the judgment debtor believes garnished property is legally exempt from collection, the debtor should file a claim of exemption. The claim of exemption can include an explanation or substantiation of the exemption. The garnishing creditor then has eight days from the date the debtor serves the claim of exemption by hand delivery, or fourteen days if served by mail, to contest the debtor’s claim of exemption. Florida law provides that the creditor’s objection to the debtor’s claim of garnishment exemptions must be based on facts asserted under oath.
In many cases, a creditor will voluntarily dissolve a garnishment upon receiving the debtor’s claim of exemption and documents from the debtor confirming the factual basis for the exemption. If the creditor contests the debtor’s claimed exemption, the court will set an evidentiary hearing to consider the debtor’s claim of exemption. The debtor can expedite the hearing by scheduling a hearing in coordination with the judge’s office and the creditor attorney. The debtor will have to present legal arguments and competent evidence supporting their exemption claim at this hearing.
Florida garnishment exemptions are not automatic. If a debtor believes their exempt asset has been garnished, the debtor must timely file a claim of exemption.
Often, a creditor’s writ of garnishment suffers from procedural defects because the creditor did not strictly follow statutory rules of garnishment. The debtor can file a motion to dismiss, or dissolve, the writ of garnishment based upon the procedural defects in the creditor’s garnishment.
Important: Exemptions must be claimed using the Claim of Exemption form. If you do not file the form in time you may lose the exemption.
Writ of Garnishment for Bank Accounts
Bank accounts are a prime target of creditor writs of garnishments in Florida because the debtor’s cash deposits are a way to quickly pay the judgment. Upon a bank’s receipt of a writ of garnishment, the bank will automatically freeze all bank accounts where the debtor’s name appears on the title of the account. The bank makes no prior assessment of whether the debtor’s bank accounts can contain exempt money.
Often, a debtor finds that exempt money held in a bank 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 a court later determines that one or more debtor accounts contain exempt funds.
Under Florida law, a debtor cannot hold a bank liable for damages because the garnishee bank froze an account holding money exempt from garnishment. The debtor must obtain a court order upholding the exemption and dissolving the garnishment.
Proper asset protection planning can often increase the protection of bank accounts from garnishment.
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Garnishment of Secured Debt
Suppose a hypothetical client asked a question regarding a judgment creditor’s writ of garnishment of accounts receivable. The client was a medical provider with substantial receivables owed by medical insurance companies. The client has previously arranged a line of credit from a national bank. The bank secured repayment with a recorded lien on the client’s accounts receivable and other assets. A judgment creditor served a writ of garnishment on one of the insurance companies that owed the client money for medical treatment provided to the insurance companies’ customers. The client wants to know if the prior recorded lien on the receivables protects the insurance receivables from the judgment creditor’s writ of garnishment.
A prior judgment against a debtor does not prevent a subsequent creditor from garnishing an unsecured debt owed to the debtor. An earlier creditor’s security interest in the debt also does not preclude a subsequent creditor from trying to garnish the debt. The secured creditor’s lien on the debt will not be enforced automatically, and the secured creditor will have to intervene in the garnishment proceeding to assert its lien and protect its prior interest.
In this hypothetical client’s situation, the client could be advised to notify the bank with the line of credit of the writ of garnishment initiated by the judgment creditor. The bank then could assert its interest either by contacting the creditor’s attorney or, if necessary, intervening in the garnishment court proceedings. The bank should be able to protect its interest in the receivables so that any insurance payments that could be garnished would be payable to the bank instead of the judgment creditor, and the money received would pay down the outstanding line of credit balance.
Important Court Case
Stansell v. Revolutionary Armed Forces of Columbia, 149 F. Supp. 3d. 1337 (M.D. Fla. 2015)
This case is relevant to the garnishment of bank accounts in other states. Florida courts do not have jurisdiction to garnish debtor’s bank accounts situated outside of Florida.
Frequently Asked Questions
How do you stop a writ of garnishment?
You can stop a writ of garnishment by filing a claim of exemption. In Florida, some types money are exempt from garnishment even after being deposited in your bank account. Accounts for married couples may be exempt from judgments of either spouse alone.
Is Florida a no garnishment state?
No. In Florida, a creditor with a money judgment can garnish your bank account or wages.
Can you use your bank account after it’s been garnished?
Yes. You can still use your bank account even though it’s been garnished. The garnishment only applies to funds that were in the account at the time of the garnishment until the bank files an answer.
What happens to funds that get deposited after your account has been garnished?
Funds that get deposited after a bank garnishment happens can still be subject to the garnishment. If they are deposited before the bank files an answer, then the bank could freeze those new funds too. If the funds get deposited after the bank files an answer, they will not be subject to the garnishment.
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