Garnishment – Take it to the Bank!

Robert Chilton, HOA AttorneyGarnishment is a fancy word.  Lawyers love fancy words.  Does it involve decorating a meal (Webster’s thinks so)?  In legal terms, garnishment is the method by which a judgment creditor (or in some instances a pre-judgment creditor) can obtain something belonging to a defendant that is in the possession of someone else.

Section 77.01, Florida Statutes, says that anyone who has recovered a judgment in court has the right to a writ of garnishment “to subject any debt due to [the] defendant by a third person” as well as any “personal property of [the] defendant in the possession or control of a third person.”  For example, if Susan gets a judgment against Paul for $100, and Steve owes Paul $50, Susan can get Steve to pay her instead of Paul.  To do so, she needs a writ.

The word “writ” brings to mind a medieval monarch ordering his knights to gather for a noble quest.  This is not far off.  Wikipedia (the most reliable of sources, I know) says that writs began as written orders by an English monarch to someone commanding them to do something.  If you replace “King” with “Court”, you have the current definition:

A court’s written order, in the name of a state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act.

Writ, Black’s Law Dictionary (10th ed. 2014).

So a writ is really just a court order.  What Susan needs, then, is a writ of garnishment telling Steve to pay to her the money he owes Paul. To get one, she must file a motion stating the amount of her judgment against Paul and identifying the person (Steve) who owes Paul money.  Section 77.03, Florida Statutes.  Steve is thus known, in the law, as the “garnishee”.  If the motion is in order, the Clerk of the Court will sign the writ Susan has prepared (Section 77.04 helpfully states what must be included).

Once issued, Susan serves the writ on Steve.  That act (personally serving the writ), is momentous.  From that instant, Steve is “liable” to Susan “for all debts due by him” to Paul and for any money or “personal property” of Paul’s in his “possession or control at the time of the service of the writ.”  Delivering the writ to Steve “creates a lien [in favor of Susan] in or upon any such debts or property” that are in Steve’s “possession or control.”

Once served, Steve is required by Section 77.06 to do two things.  First, he must retain and hold anything subject to the writ (for instance, the money he owes Paul).  Then, he must file an “answer” telling Susan how much he owes Paul (or how much stuff belonging to Paul he holds).

If you are feeling sorry for poor Steve, who did not ask to be in this mess, things get worse.  If Steve does not both answer Susan’s writ and hold (i.e. not disburse, lose, transfer, give away) whatever he owes to or is keeping for Paul, he could be in worse trouble.  Section 77.13 says that Steve may be liable to Susan for whatever Paul owes her if Steve “will not surrender the personal property belonging to” Paul “provided he . . . has the power to do so[.]” See Arnold Matheny and Eagan, P.A. v. First Am. Holdings, Inc., 982 So. 2d 628, 632 (Fla. 2008) (“If the garnishee fails to retain the property of the defendant or otherwise comply with the writ, the plaintiff may obtain a monetary judgment against the garnishee.”).

And that, my friends, is a brief (and simplistic) explanation of the wonderful world of garnishment.  It is more than a culinary decoration.  If you are Susan, it is a useful tool to collect on a judgment.  If you are Paul, it is a scary development.  And if you are Steve, it could be a nightmare if you do not have legal help.

Post Date: April 6, 2016

By: Robert C. Chilton