FORT LAUDERDALE BUSINESS LITIGATION: GARNISHMENT COLLECTION

After a claimant successfully prevails in a lawsuit and obtains a money judgment against the opposing party, the claimant must collect on the judgment. However, collecting is often easier said than done because the losing party does not usually pay the judgment voluntarily. The prevailing party must often undertake further legal proceedings to collect on the judgment. One option available to the judgment holder is garnishment. The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration

Garnishment is a procedure in which a judgment creditor can obtain the wages or property of a judgment debtor to satisfy a monetary judgment. The garnishor seeks to obtain the property of the judgment debtor held by a third person. See Fla. Stat. § 77.01 (allowing garnishment of any debt due to the defendant or any personal property of the defendant held by a third person). Garnishment actions often pursue funds held in the judgment debtor’s bank account or the judgment debtor’s wages.’

The procedures for garnishment proceeding in Florida are set out in Florida Statutes Chapter 77. The first step in the garnishment process is to file a motion for writ of garnishment. Fla. Stat. § 77.03. The motion can be filed ex parte, meaning without notice to the judgment debtor. United Presidential Life Ins. Co. v. King, 361 So. 2d 719 (Fla. 1978). Once the court grants the motion for writ of garnishment, the clerk of courts will then execute the writ of garnishment. If the judgment debtor is an individual, the clerk will attach a “Notice to Defendant” form to the writ. Fla. Stat. § 77.041. The Notice advises the judgment debtor that he or she may file a claim of exemption.

The judgment creditor must serve the writ of garnishment on the third party holding the debtor’s property or wages once the clerk issues the writ. The third party is known as the garnishee. The garnishee is then required to retain the debtor’s property until further order by the court with some limited exceptions. The garnishee must also answer the writ of garnishment within twenty days of service by identifying the judgment debtor’s property in its possession. Fla. Stat. § 77.04. For example, in an action to garnish a judgment debtor’s bank account, the bank would be the garnishee. The bank must freeze the judgment debtor’s bank account once served with the writ to prevent the judgment debtor from removing account funds. The bank must also answer the writ by informing the garnishor how much money is contained within the judgment debtor’s account.

The judgment debtor can try to claim the property to be garnished in the possession of the garnishee is exempt from collection. Fla. Stat. § 77.055. The judgment debtor could claim he is the head of the family and his wages provide more than one-half of the support for a child or other dependent and (1) have net earnings of $750 or less per week or (2) more than $750 per week, but judgment debtor did not agreed in writing to have his wages garnished. The judgment debtor could also claim the assets to be garnished are exempt because they are social security benefits, supplemental security income benefits, public assistance, workers’ compensation, reemployment assistance, veterans’ benefits, retirement or profit-sharing benefits, life insurance benefits, disability income, or a prepaid college trust fund. In any of these scenarios, the judgment creditor must answer to the claim of exemption. A failure to answer can result in the automatic dissolution of the writ. Fla. Stat. § 77.04. An evidentiary hearing or trial must then be held to determine whether the assets are actually exempt.

Those that prevail in a lawsuit may want to pursue garnishment actions to collect on their judgment. However, Florida’s garnishment procedures are complex. It is important to closely follow the procedures to successfully garnish the debtor’s property.

The Fort Lauderdale business litigation lawyers of the Mavrick Law Firm also represent clients in Miami , Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.