Prejudgment Writ of Garnishment

Jimerson Birr

5 years ago

Motion and/or Affidavit of Prejudgment Writ of Garnishment, §77.031 Fla .Stat.

Garnishment is a statutory remedy used to reach tangible or intangible personal property of a debtor while that property is in the hands of a third party. A very common example of such is garnishment of a debtor’s wages from his employer, or garnishment of a debtor’s bank account. In Florida, prejudgment writs of garnishment are governed by Chapter 77, Florida Statutes. Similar to attachment, garnishment normally occurs after a judgment has been entered by the court, however in exceptional circumstances similar to prejudgment writs of attachment, a trial court has the authority to order a writ of garnishment to a debtor’s property prior to a final judgment order.

Issuance of the writ prejudgment is specifically governed by § 77.031, Fla. Stat. To obtain a prejudgment writ of garnishment, the plaintiff must file a verified motion or an affidavit with the court, alleging:

The nature of the cause of action;
The amount of the debt;
The debt is due;
The debt is unpaid;
The garnishment is not sued out to injure either the defendant or the garnishee[1]; and
The plaintiff believes that the defendant will not have in his possession, after execution is issued tangible or intangible property in this state and in the county in which the action is pending on which a levy can be made sufficient to satisfy the plaintiff’s claim.[2]

Unlike prejudgment writs of attachment, prejudgment writs of garnishment are available only if the debt for which the plaintiff sues is actually due.[3] This is a stricter standard than that for prejudgment writs of attachment. This means that any debt due to the defendant that cannot be ascertained or is contingent is not subject to garnishment.[4]

To Properly Attach Prejudgment, the plaintiff must post a bond to the defendant at least double the amount of the debt owed.

The plaintiff, like for a prejudgment writ of attachment, must post a bond in at least double the amount of the debt demanded before a prejudgment writ will be issued.[5] The bond must be given with surety and approved by the clerk of court.[6] The bond protects a defendant whose property has been subject to a prejudgment writ of garnishment. The bond must be conditioned to pay all costs, damages, and attorney’s fees that the defendant sustains in consequence of the plaintiff’s improperly suing out of the writ of garnishment.[7] The only exception to the bond requirement is if an attachment writ on the plaintiff has already been issued.[8] Additionally, the plaintiff must pay $100 to the garnishee on the garnishee’s demand for the payment of his attorney fee which the garnishee (third party in possession of defendant’s property) expends in obtaining representation in response to the writ.[9]

Once the Notice of Garnishment is sent to the garnishee, the garnishee has twenty days to respond. If the plaintiff does not agree with the garnishee response, plaintiff has an additional twenty days to file a response to the garnishee.

Once the writ is entered, it is sent to the garnishee who is required to serve an answer on the plaintiff within twenty days after service of the writ.[10] The answer must state whether the garnishee is indebted to the defendant at the time of the answer, or at the time of service of the writ, plus up to one business day for the defendant to act expeditiously on the writ.[11] The answer must also state the sum/value and what tangible or intangible personal property of the defendant the garnishee has in his possession at the time of his answer or service of the writ, and whether the garnishee knows of any other person indebted to the plaintiff or who may have the defendant’s property in his control.[12]

Within five days after service of the garnishee’s answer on the plaintiff, or after the time period (twenty days) for garnishee’s answer has expired, the plaintiff shall serve, by mail, the following documents to the defendant: (1) a copy of the garnishee’s answer, and (2) a notice advising the recipient that he must move to dissolve the writ of garnishment within twenty days after the date indicated on the certificate of service in the notice if any allegation in the plaintiff’s motion for writ of garnishment is untrue. § 77.055 Fla. Stat. The documents must be served on the defendant at his last known address and any other address disclosed in the garnishee’s answer and on any other person disclosed in the garnishee’s answer to have any ownership interest in the deposit, account, or other property controlled by the garnishee. Id.

When a garnishee answers and the plaintiff is not satisfied with the answer, the plaintiff can serve a reply within 20 days after receipt of the answer denying the allegations of the answer as he desires. § 77.061 Fla. Stat. If the plaintiff does not reply to the garnishee’s answer, the answer shall be taken as true. Id. And on proper disposition of the assets, the garnishee is entitled to an order discharging him from further liability of the writ. Id.

The Clerk also Sends the Notice of Garnishment to the Debtor

Notice is also sent to the debtor by the clerk of court attached to the writ of garnishment. The notice gives the debtor information regarding assets that are exempt from garnishment.[13] It also explains to the debtor how to claim an exemption and to request a hearing to determine the validity of the claimed exemption.[14] The form of the notice is outlined by § 77.041(1) Fla. Stat. The plaintiff must mail by first class mail to the debtor (1) a copy of the writ of garnishment, (2) a copy of the motion for writ of garnishment, and (3) if the debtor is an individual, the “Notice to Defendant” to the debtor’s last known address within five business days after the writ is issued or three business day after the writ is served on the garnishee, whichever is later.[15] If the documents are sent to the last known address and are returned as undeliverable by the post office, or if the last known address is not discoverable after a diligent search, the plaintiff must send the documents by first class mail to the defendant at his place of employment.[16] The plaintiff must also file a certificate of service with the clerk.[17] If the debtor completes the claim of exemption form and files it with the court with a request for hearing, the court must hold a hearing as soon as practical to determine the validity of the claimed exemptions.[18] From there, if the plaintiff does not file a sworn written statement that answers the debtor’s claim of exemption within eight business days after hand delivering the claim and request, or alternatively, fourteen business days if the claim and request were served by mail, no hearing is required and the clerk must automatically dissolve the writ and notify the parties of the dissolution by mail.[19]

Contest of Garnishment/Dissolution of Writ

The debtor may file a motion within twenty days after the notice of garnishment is served contesting the garnishment.[20] The debtor may obtain the dissolution of a writ of garnishment unless the plaintiff proves the grounds upon which the writ was issued, and in the case of a prejudgment writ, there is a reasonable probability that the final judgment in the underlying action will be rendered in his favor.[21] The court shall set the motion for dissolution for an immediate hearing.[22] Any issues raised by the pleadings shall be tried at the same time as the issues raised in defendant’s motion to plaintiff’s motion.[23] If the plaintiff fails to file a dismissal or motion for final judgment within six months after filing the writ of garnishment, the writ shall automatically be dissolved and the garnishee shall be discharged from further liability under the writ.[24] The plaintiff has the right to extend the writ for an additional six months by serving the garnishee and the defendant a notice of extension and certificate of service.[25] This issue can be tried by jury if any party demands such.[26]

Conclusion

Like the prejudgment writ of attachment, the prejudgment writ of garnishment is another useful tool in a plaintiff’s arsenal to ensure successful recovery. Plaintiffs should follow the statute carefully if they wish to properly wield this tool, including potential delays in the litigation itself and additional costs associated with contesting the garnishment. Plaintiffs should be confident in their chances in obtaining a judgment as they have post the bond in order to successfully garnish a debtor’s property prejudgment. Therefore, plaintiffs hoping to collect but concerned about the debtor’s assets and the volatility of their location throughout pending litigation should consult their attorney to inform them of this avenue prior to filing the motion and affidavit with the court.

[1] The “garnishee” is the third party whom the plaintiff is trying to collect the defendant’s assets from. For example, in collecting from a defendant a plaintiff attempts to garnish wages from the defendant’s employer, the employer is considered the garnishee.

[2] § 77.031(2) Fla. Stat

[3] Id.

[4] Cobb v. Walker, 198 So. 324 (Fla. 1940).

[5] § 77.031(3) Fla. Stat.

[6] Id.

[7] Id.

[8] Id.

[9] § 77.28 Fla. Stat.

[10] § 77.04 Fla. Stat.

[11] Id.

[12] Id.

[13] §77.04 Fla. Stat.