It’s the Law: An effective collection tool

Q: I got a judgment against someone that owes me money. Then I found out the judgment is not automatically paid and we do not imprison people for failure to pay debts. I know this guy has a lot of money in the bank, so how can I get it?

A: A debtor’s bank account can be a beautiful thing when you hold a judgment. Through a judicial process called garnishment, you can require the bank to pay you money held for the debtor instead of paying the debtor.

Garnishment can be used to require anybody who owes money to your debtor to pay you. The process is relatively simple, but technical, so I recommend you retain an attorney to further your collection effort.

Any person holding money due to a debtor and certain future debts, including wages, can be subject to garnishment. After proper application, the court that issued the final judgment issues a writ of garnishment. The judgment creditor must wait 10 days after judgment for applying for the writ, but it is promptly issued by the court after application.

When filing the motion for writ of garnishment, a filing fee must be paid and you must also deposit with the clerk $100 as partial payment toward the garnishees attorney’s fees. Unfortunately, the garnishment statutes do not provide for recovery of the judgment creditor’s attorney fees in pursuit of garnishment.

The motion for garnishment is supposed to state that you do not believe the debtor has visible property in his possession sufficient to satisfy the judgment. That is a precondition to issuance of the writ. If the motion is in proper form, the clerk will issue the writ without a hearing and either the Sheriff or private process server delivers the garnishment writ to the bank.

The bank has 20 days within which to answer the writ. In its answer, the bank confirms or denies that it is holding money for the debtor. The amount of money necessary to satisfy the judgment is frozen until the process is completed.

The requirement to hold the debtor’s funds is quite strong. In one recent case, an attorney was held liable to the judgment holder when a writ of garnishment was served on the attorney. The attorney had written a check on his trust account from funds held for the client, who was the judgment debtor. The check had not cleared the account but the attorney did not issue a stop payment. The Florida Supreme Court held the attorney had a duty under the garnishment writ to retain property in his possession or control and that the funds were still in the attorney’s possession and control until the check was paid. The attorney was saddled with liability.

You are not required to pre-notify the debtor of your effort to obtain a writ of garnishment. The statutes recognize that prior notice would allow the debtor to run down to the bank and take out his money. You are required to provide notice to the debtor within five business days after the writ is issued or three business days after service on the bank, whichever is later. The clerk is required to attach to the garnishment writ a form for the judgment debtor to claim any exemption from garnishment provided by the law. Those exemptions include exemption from garnishment of wages if the debtor is held of household. If the bank account is comprised solely of those wages, the exemption may also apply to the bank account. The debtor is also allowed to raise other defenses.

Within five days of the bank’s answer to the garnishment writ, you are required to serve notice with copies of the answer on the debtor and the debtor has twenty days to move to dissolve the writ. A hearing is held to determine if the writ should be dissolved or if any exemptions or defenses are valid. If you are successful, judgment will be entered and the bank ordered to pay you the debtor’s money.

Garnishment can be a powerful collection weapon. Because the procedures and timing are quite technical and mandated by statute, you would be well served to retain an experienced attorney for further pursuit of your collection effort in this matter.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@embarqmail.com or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.

© 2008 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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