Debt. Lawsuit. Final Judgment. Garnishment. If your client is at any stage referenced by the preceding four words, I suggest that the client obtain legal advice regarding exposure to garnishment.
Many times clients will ignore a debt they owe. Then they are sued. Sometimes they ignore the lawsuit, or even if they do not, they lose the lawsuit. Either way, a Final Judgment is entered against them. Sometimes they ignore the Final Judgment. Subsequently they may also ignore the “Notice to Defendant” of Writ of Garnishment. But never, ever, do they ignore the fact that they cannot gain access to their bank account because it is suddenly frozen or that their wages are suddenly reduced because they are being garnished. Then they come to see me.
Usually, when a client comes in to see me regarding a garnishment, my first order of business is to explain the reason for the garnishment since the majority of clients do not understand the process: Debt. Lawsuit. Final Judgment. Garnishment. I explain that the party who wins the lawsuit, the judgment creditor, is entitled to a Writ of Garnishment. The Writ of Garnishment is court directed to a bank, credit union, employer or other third party (i.e. “garnishee”) which has in its possession money or other property for (anticipated) delivery to the judgment creditor.
Depending on the particular case and/or circumstance, I explore with the client whether there is a legal basis to challenge the underlying judgment. Was service of process in the underlying lawsuit proper? Was the client the intended/correct Defendant? (I have come across situations where my client had the same name as the intended Debtor and was erroneously served.) Was the Notice of Hearing mailed to the correct address? Was there a procedural error? If the client can successfully attack the underlying Judgment as being void, the Writ of Garnishment will be dissolved.
Further, I examine whether the notice the client received complied with the statutory requirements of Florida Statute, Section 77.041. Because garnishment statutes are strictly construed, all time requirements must be followed. In each instance where a Plaintiff/Creditor requests a Writ of Garnishment, the Defendant is to be sent a copy of the Motion for Garnishment, Writ of Garnishment and “Notice to Defendant” with instructions as to what to do if they have an exemption to claim and/or want to request a hearing. The documents must be sent to the Defendant 5 business days after the Writ is issued or 3 business days after the Writ is served on the garnishee, whichever is greater.
The client and I go over the general garnishment exemptions and whether any apply to their situation. Many of these exemptions are listed in Florida Statute, Section 77.041: wages of head of family, social security benefits, supplemental security benefits, public assistance, worker’s compensation, unemployment compensation, veteran’s benefits, retirement or profit-sharing benefits, disability income benefits, prepaid college trust fund , life insurance benefits, medical savings account etc. However, there are other exemptions not mentioned in the statute, such as proceeds from the sale of a homestead intended for another homestead, or, in some cases, interest/distributions of a limited liability company.
Florida Statute, Section 222.11 (c) states that the “head of Family” includes anyone that is providing more than one-half of the support for a child or dependent. Florida Statute, Section 222.11(2)(a) states that all of the disposable earnings of a head of family whose disposable earnings are less than or equal to $750.00 a week are exempt from attachment or garnishment. If the disposable earnings are more than $750.00 per week, then the head of household exemption can be waived by signing a WAIVER that complies with Florida Statute, Section 222.11 (2)(b)(1)(2)(3). Head of household exemptions may encompass individuals who are supporting children or others with whom they are not residing.
Notably, head of household “earnings” will not include money a person who owns /controls a business pays himself/herself from time to time through profits. Such funds are not exempt from garnishment. Monies earned by a solo practitioner and deposited into a bank account to pay personal and business expenses are generally not exempt. Generally, discretionary payment from family-owned businesses will not be considered exempt from garnishment.
Sometimes a writ of garnishment is being sought against a client’s property and that client is not a named party on the actual Judgment. For instance, a Judgment may be against a daughter/son, whose name is on an account but which account contains monies only for a parent. In that instance, the parent may move to dissolve the garnishment. Or, a Judgment may be against a parent, while the writ of garnishment is sought against an account held in the parent’s name but the monies contained therein are for a child. Additionally, if a Judgment is only against one spouse, and the Writ of Garnishment is directed towards an account held by both spouses (opened at the same time), then the account should be exempted from garnishment.
Due to publication limitations/guidelines, this article Is not, by any means, exhaustive. On the contrary, it is an overview to alert practitioners that their clients may have issues surrounding garnishment that require more intensive scrutiny.
