What is a Writ of Garnishment?
A Florida writ of garnishment is a collection tool that helps a judgment creditor collect a money judgment against a debtor. The writ of garnishment enables the judgment creditor to intercept money owed to the judgment debtor by third parties.
A typical debtor is owed money from several third parties. Debts owed to the debtor include, for example, wages and salary owed by the debtor’s 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; the financial institution owes money on deposit to the debtor upon demand.
Florida Garnishment Law
Garnishments are allowed and regulated by Chapter 77 of Florida law. These laws set forth procedures, rules, and defenses of garnishments.
Creditors must comply strictly with all garnishment rules including properly completing and mailing legal papers and complying with several time deadlines. The debtor may dissolve a writ of garnishment if there is a procedural defect in the creditor’s prosecution of the writ. It is important for both creditors and debtors to understand Florida’s detailed garnishment procedures.
Florida Garnishment Rules and Procedures
A key section of Florida garnishment law that includes the procedural deadlines for the creditor and allows a judgment debtor to contest the garnishment is section 77.041. The statute provides that a creditor seeking to garnish a debtor’s funds 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 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, stock broker 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 Court, and a Claim of Exemption form within five days of clerk’s issuance of the Writ, or within three days of service onto the garnishee, whichever is later.
Garnishee Response to Writ of Garnishment
The garnishee (such as a bank) is required to 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 answer. The court will set the matter for a hearing to determine whether the garnishee’s answer is factually correct.
Debtor’s Garnishment Exemptions
Florida law exempts several types of debtor assets from writs of garnishment. Examples of garnishment exemptions include, a head of household exemption applicable to a wage garnishment or an exemption to garnishment of a bank account holding retirement distribution proceeds.
The garnishment statute includes procedures for a judgment debtor to claim his 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 can file with the court a claim of exemption. The filed claim of exemption may include an explanation or substantiation of the 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 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 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. At this hearing, the debtor will have to present legal argument and competent evidence supporting his exemption claim.
The key thing to understand is that Florida garnishment exemptions are not automatic. If a debtor believes his 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.
Bank Account Garnishment in Florida
Bank accounts are a prime target of creditor writs of garnishments in Florida. Upon a bank’s receipt of a garnishment writ the bank will automatically freeze all bank accounts where the debtor’s name appears on the title of the account. Debtor bank accounts can contain exempt money such as retirement distributions, annuity distributions, or head of household wages.
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.
What to Do Next
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, contact us to schedule an appointment.
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