HOW DOES THE GARNISHMENT PROCESS WORK TO ENFORCE A JUDGMENT IN FLORIDA?

A writ of garnishment is a powerful legal tool that allows judgment creditors to collect debts by seizing assets belonging to a judgment debtor that are in the hands of a third-party. This process enables judgment creditors to recover outstanding judgments through third parties, such as banks or employers, who hold money or other property that belongs to the judgment debtor.

The Legal Remedy of Garnishment 

Garnishment is a legal remedy that allows a judgment creditor to seize a judgment debtor’s assets held by a third party, known as the garnishee. The garnishee could be an employer, bank, or other financial institution that possesses funds or property that belong to the judgment debtor. Garnishment can apply to a variety of assets, including wages, bank accounts, and other sources of income.[1]

What is a Writ of Garnishment? 

Under Florida law, a writ of garnishment is a court order that directs the garnishee to serve an answer on the judgment creditor within twenty days of receiving the writ.[2] The garnishee’s answer must state whether:

• “[T]he garnishee is indebted to the defendant at the time of the answer, or was indebted at the time of service of the writ, plus up to 1 business day for the garnishee to act expeditiously on the writ, or at any time between such times,”

• “[I]n what sum and what tangible or intangible personal property of defendant the garnishee has in his or her possession or control at the time of his or her answer, or had at the time of the service of the writ, or at any time between such times,” and

• “[T]he garnishee knows of any other person indebted to defendant, or who may have any of the property of defendant in his or her possession or control.”[3]

The garnishee’s answer ultimately serves as the basis for the court entering a judgment against the garnishee.[4] This judgment enables the judgment creditor to collect the judgment debtor’s assets that are in the hands of the garnishee.

When Can a Judgment Creditor Seek Issuance of a Writ of Garnishment? 

Writs of garnishment are available both before and after a judgment is entered against a party, though the requirements for the writs to be issued differ in each circumstance. Except for “action[s] sounding in tort,”[5] a pre-judgment writ of garnishment is generally available as long as the potential judgment creditor complies with the procedure set forth in section 77.031(2), Florida Statutes. Namely, the potential judgment creditor must file either a “verified motion or affidavit” that alleges “by specific facts” the following:

• “[T]he nature of the cause of action,”
• “[T]he amount of the debt and that the debt for which the plaintiff sues is just, due, and unpaid,”
• “[T]hat the garnishment is not sued out to injure either the defendant or the garnishee,” and
• “[T]hat the plaintiff believes that the defendant will not have in his or her 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.”[6]

Moreover, the potential judgment creditor must “set forth a notice to the defendant of the right to an immediate hearing for dissolution of such writ pursuant to [section 77.07, Florida Statutes].”[7]

Conversely, post-judgment writs of garnishment are available in all actions. To obtain issuance of a post-judgment writ of garnishment, the judgment creditor must simply “file a motion (which shall not be verified or negative defendant’s exemptions) stating the amount of the judgment.”[8]

If you have questions regarding post-judgment proceedings to collect on a judgment, including garnishment, contact the attorneys at Rabin Kammerer Johnson at (561) 659-7878.

[1] See Fla. Stat. § 77.01.

[2] See Fla. Stat. § 77.04

[3] Id.

[4] See Fla. Stat. § 77.083.

[5] Fla. Stat. § 77.02.

[6] See Fla. Stat. § 77.031(2).

[7] Id.

[8] Fla. Stat. § 77.03.