- Writs of Garnishment in Florida: An Overview
- December 29, 2014 | Authors: Karl R. Gruss; Edward Lee Kelly
- Law Firm: Rogers Towers, P.A. - Jacksonville Office
Writs of garnishment provide judgment creditors (i.e., the party in whose favor the judgment was entered) access to money that belongs to debtors but is possessed or controlled by third parties, typically financial institutions. Chapter 77 of the Florida Statutes details the State’s procedures for properly obtaining and executing writs of garnishment, and Florida courts have devoted significant attention to interpreting the legislature’s statutory scheme. This article discusses some of the basic procedures judgment creditors must follow to successfully garnish the property of a judgment debtor and the obligations of garnishee financial institutions served with a writ.
Property or Funds Subject to Garnishment
Writs of garnishment allow judgment creditors to reach particular kinds of property or property rights of a judgment debtor, including:
- any debt that is due or that will become due to the debtor, and only the debtor, by a third party; and
- any intangible or tangible property owned by the debtor but controlled or otherwise possessed by a third party.
Funds on deposit in a bank account are, strictly speaking, a debt that the bank owes the depositor on demand, and this creates a common source of recovery for a judgment creditor.
When the judgment creditor targets the debtor’s funds held in a bank account, the judgment creditor initiates the process by serving a writ of garnishment on the financial institution maintaining the debtor’s account. Within 20 days of receiving the writ, the garnishee financial institution must respond by filing a statement indicating whether it in fact maintains any funds owed to the debtor, the amount of those funds held, and whether the garnishee knows of any other party that holds property owed to the debtor.
Retaining Funds Owed to the Debtor
When served with a writ of garnishment, the garnishee financial institution becomes liable for all debts it owes to the judgment debtor, i.e. all funds held in the debtor’s accounts maintained by the garnishee. Thus, upon receipt of the writ, the garnishee is permitted to freeze the funds owed to the debtor in an amount not to exceed twice the sum specified in the writ of garnishment as owing to the judgment creditor. Failure to hold the funds or to timely respond to the writ may result in the liability of the bank for the amount of the debt, plus costs. Accordingly, it is critically important that the financial institution timely respond to the writ. Even if questions surface concerning whether the funds held by the garnishee financial institution are properly subject to the writ of garnishment, the garnishee may retain those funds and avoid liability.
Duty to Complete the Garnishment
After the garnishee files its response to the writ of garnishment, the judgment creditor must either file a dismissal of the writ (typically when the garnishee reports no open accounts or that there are little or no funds on deposit in the account) or file a motion for final judgment (typically when there are funds on deposit in the account). The judgment creditor must file its dismissal or motion for final judgment within six months of the issuance of the writ. The judgment creditor may extend the life of the writ for an additional six months by serving the garnishee and the judgment debtor notice of the extension and by filing a certificate of service in the underlying action, but the extension must be obtained prior to the writ’s initial expiration date. Upon expiration of the writ, it is automatically dissolved and the garnishee is relieved of any liability.
As we will discuss in a follow-up article, complications may arise when creditors pursue accounts that list more than one party as the account holder. A recent case out of Florida’s Fourth District Court of Appeals, Branch Banking and Trust Company v. ARK Development/Oceanview, LLC, demonstrates how creditors must analyze the information provided by the garnishee in its answer and any response and objection by a third party before proceeding further.