Your bank account has been frozen but you don’t know why. Now you find out that the account has been garnished. You have options. It is not the end of the world. The following is a summary of the Garnishment process and the options may still have available to you.
Judgment Creditor
If a judgment creditor wants to garnish your bank account, then it must be just that…a judgment creditor. Ordinarily, a creditor cannot garnish your bank account unless it has a judgment against you. A judgment creditor is someone you owe money to that also has a judgment against you for the debt. So the creditor sued you for the debt and was awarded a judgment by the Court.
Motion for Writ of Garnishment and Notice to Defendant
A judgment creditor must ask the Court to garnish your bank account by filing a motion for writ of garnishment. If the defendant is an individual, then the judgment creditor must send the defendant copies of the motion for writ of garnishment, the writ of garnishment, and the Notice to Defendant form. The defendant must be served the documents by US Mail at his or her last known address within five (5) business days of the writ being issued or within three (3) business days of the bank being notified (whichever is later).
The Notice to Defendant form advises the defendant of his or her rights as well as includes a form for the defendant to claim any applicable exemptions. The Notice to Defendant form is critical to a garnishment. A garnishment may be dissolved if the judgment creditor fails to provide the defendant the requisite, statutory notice or fails to timely provide the notice. However, the judgment creditor could seek another writ of garnishment to cure notice errors.
Claim of Exemptions
The defendant has twenty (20) days after receiving the motion for writ of garnishment, writ of garnishment, and Notice of Defendant form to file a Claim of Exemptions. If the defendant does not fie a Claim of Exemptions or does not file it timely, then the garnishment will proceed unchallenged.
However, a timely-filed Claim of Exemptions requires action by the judgment creditor. The judgment creditor must file a sworn statement contesting the Claim of Exemptions. Otherwise, the writ of garnishment is automatically dissolved by the Clerk of Court. If the judgment creditor is hand-delivered the Claim of Exemptions, then it has three (3) days to file the sworn statement. But the judgment creditor has eight (8) days to file the sworn statement if mailed the Claim of Exemptions. A hearing will be scheduled to address the Claim of Exemptions if the judgment creditor timely files a sworn statement.
Exempt Property
Certain types of property are not subject to garnishment.
- Social Security Benefits
- Disability Benefits
- Retirement Benefits
- Funds deposited into a bank account which are traceable to wages are protected from garnishment for a period of six (6) months. The funds are protected if they are traceable to wages. Commingling of the funds does not destroy the protection. There is no requirement that the source of the funds be the “head of family” or that you provide more than one-half (1/2) of the support for a child or dependent.
- You may exempt $4,000.00 of any personal property pursuant to Florida’s Wildcard Exemption. Source of the funds is irrelevant.
Hearing on Claim of Exemptions
If the judgment creditor timely contests the Claim of Exemptions, then a hearing is scheduled. The defendant has the burden to prove that the exemption claimed is proper. The hearing is very fact-intensive, and the head of family exemption may be applied liberally by the courts. However, please note that the prevailing party may be awarded attorney fees by the court.
Bankruptcy
Bankruptcy coupled with a proper exemption of the funds will stop the garnishment. However, you must qualify for a Chapter 7 and 13 Bankruptcy. Contact an experienced bankruptcy attorney to discuss your bankruptcy options. The Law Office of Brent M. Myer provides free bankruptcy consultations.