Garnishing can be a powerful collection tool. Sometimes a debtor who has ignored you for weeks (or longer) will call once a garnishment hits. The challenge, of course, is knowing which bank to serve with a garnishment writ.
The out of pocket costs for a garnishment are relatively low, and typically a $250 cost advance covers it. The clerk of court’s filing fee is $85, the bank is entitled to a $100 attorney fee check, and the process server will charge about $50 to serve the writ on the bank.
Bank garnishments
A bank garnishment is a one-time attempt at catching funds in a specific bank account or accounts. In other words, it’s not a continuing garnishment like a wage garnishment.
Wage garnishments
Generally, a wage garnishment will let you collect twenty-five percent of your judgment debtor’s take-home pay. Wage garnishments are great, because the garnishment stays in place until the judgment is paid (unless the debtor stops working there).
If your debtor is a person, and thus not a business entity, there are some ways he or she can prevent wages from being garnished. The most common is the “head of household” exemption. Specifically, if a debtor is responsible for at least half of someone else’s support (such as a spouse or child), then the debtor can exempt his or her wages from garnishment. It does not matter how much money the debtor makes: if your debtor is the head of household under the garnishment statutes, then his or her wages are protected from garnishment.
The head of household exception can apply even after funds go into a bank account. A debtor who qualifies for the head of family exemption can successfully protect his or her wages from garnishment, after the wages have been deposited into a bank account (and up to six months after they are deposited).
The burden is on your debtor to prove that he or she is head of family, but the exception is construed liberally. The head of family exception won’t apply if the judgment is for spousal or child support, however, or if the debt is for taxes.
Garnishment deadlines
The garnishment statutes certainly could be clearer, especially when it comes to deadlines after the writ of garnishment is served. It is critical to comply with the requirements and deadlines, so that a debtor does not end up having the garnishment dismissed on a technicality.
Once the garnishment writ is served on the debtor’s bank or employer: Within three business days of the writ being served (or within five business days of the writ being issued, whichever is later), a copy of the garnishment writ, a copy of the motion for the garnishment writ, and—if your debtor is an individual—the exemption claim form and hearing request form, all must be mailed to the debtor at the debtor’s last known address. A certificate of service showing that this was done must be filed with the court. And if the mail is returned, or if the last known address after a “diligent” search cannot be found, then they must be mailed to the debtor’s place of employment. (Section 77.041, Fla. Stat.)
If the debtor files a claim of exemption: If the debtor mails a claim of exemption, then to contest it, a sworn statement must be filed (if you choose to contest it) within fourteen business days. But—and this is rare—if the debtor delivers the exemption by hand, then the sworn statement must be filed within eight business days. (Section 77.041, Fla. Stat.) The court will set a hearing on the claim of exemption.
Once the bank or employer answers the writ: Within five days of the answer being served, a copy of the bank’s or employer’s answer and a copy of the garnishment writ, along with a notice telling the debtor he/she/it has twenty days to move to dissolve the writ if anything in your motion is untrue, must be mailed to the debtor. (Section 77.055, Fla. Stat.)
If you don’t agree with the bank’s or employer’s answer: Within twenty days, a reply to the answer must be filed, if we believe something in the answer is not correct. (Section 77.061, Fla. Stat.) The court will make the final determination after a hearing.
