This article provides a brief overview of garnishment under Florida law. Plaintiffs file lawsuits to get judgments against defendants. Usually, plaintiffs seek judgments for a certain sum of money. However, obtaining a judgment against a defendant is one thing. Collecting on the judgment is another.
A judgment for money is not self-executing, rather it must be enforced. However, if the judgment creditor has information concerning the judgment debtor’s bank accounts or employer, or knows the names and addresses of persons indebted to the judgment debtor or in possession of its property, the judgment creditor may be able to reach these assets through a garnishment action.
“A writ of garnishment brings before the court, for the first time, a garnishee believed to hold money or other property of the judgment debtor.” Sims v. Meredith, 967 So. 2d 393, 394 (Fla. 1st DCA 2007). Garnishment is a statutory process, and the rights of the parties and procedures for exercising those rights are set forth in the statute. Florida’s garnishment statute provides “[e]very person or entity who has … recovered judgment in any court … has a right to a writ of garnishment … to subject any debt due to defendant by a third person … and any tangible or intangible personal property of defendant in the possession or control of a third person.” Fla. Stat. § 77.01.
“A writ of garnishment will only be enforceable within the bounds of the [state or] federal district in which it was issued.” Am. S. Ins. Co. v. Yellow Cab Co. of Tampa, Inc., No. 8:19-cv-2244-T-36-AEP, 2021 U.S. Dist. LEXIS 10219, at *1 (M.D. Fla. Jan. 20, 2021). Additionally, a judgment creditor may only use garnishment to reach property that is owned by the judgment debtor. Ginsberg v. Goldstein, 404 So. 2d 1098, 1099 (Fla. 3d DCA 1981).
In a garnishment proceeding, the judgment creditor steps into the shoes of the judgment debtor and proceeds against a third person, the garnishee, to collect the debt due or property of the judgment debtor. Oper v. Air Control Prods., Inc. of Miami, 174 So. 2d 561, 563 (Fla. 3d DCA 1965). The judgment creditor has no greater rights against the garnishee than the judgment debtor has, and a judgment against the garnishee is limited to the amount of the garnishee’s debt to the judgment debtor, not the amount of the judgment creditor’s claim. Fla. Pub. Serv. Com’n v. Pruitt, 587 So. 2d 561, 563 (Fla. 1st DCA 1991).
“[I]t is apparent that, for a post-judgment garnishment, the total amount sought to be garnished must be contained in a judgment that exists prior to the issuance of the writ.” Pineiro v. Am. Exp. Card Servs. Co., 105 So. 3d 614, 616 (Fla. 4th DCA 2013). “It is improper to allow a garnishment based upon an underlying judgment that fails.” A.T. Clayton & Co. v. Hachenberger, No. 8:10–mc–148–T–30TBM, 2011 WL 1899256, at *2 (M.D. Fla. May 19, 2011) (quoting Camodeca v. Camodeca, 470 So. 2d 863, 863 (Fla. 2d DCA 1985)). “A garnishee may raise by way of defense the invalidity of the judgment which is the basis for garnishment after judgment.” Blatch v. Wesley, 238 So. 2d 308, 310 (Fla. 3d DCA 1970).
“Judgement [sic] debtors may obtain dissolution of a writ of garnishment if they establish that the funds are exempt from garnishment under state or federal law.” Cole v. Am. Capital Partners Ltd., Inc., No. 06–80525–CIV, 2010 WL 114890, at *4 (S.D. Fla. Jan. 12, 2010). For example, under Florida law, property that is owned as the tenancy by entireties (“TBE”) form is immune from execution by creditors of a single spouse. See In re Sinnreich, 391 F.3d 1295, 1297 (11th Cir. 2004) (citing Beal Bank SSB v. Almand & Assoc., 780 So. 2d 45, 53 (Fla. 2001)).
Upon application for a writ of garnishment, the clerk of court is required to provide a specific notice to any individual defendant. See Fla. Stat. § 77.041. In response to the writ, an individual defendant may then file a notarized “Claim of Exemption and Request for Hearing” form, indicating the basis for the exemption. Id. After the defendant files the exemption form, the court should hold a hearing “as soon as is practicable to determine the validity of the claimed exemptions.” Id
“Florida’s Garnishment statutes must be strictly construed.” Vt. Ry., Inc. v. PDBH Constructors, Inc., No. 10–62225–CV, 2011 WL 7293430, at *1 (S.D. Fla. July 27, 2011). If the judgment creditor fails to provide the notice required, or fails to give the notice timely, the writ of garnishment is subject to dissolution. Cullen v. Marsh, 34 So. 3d 235, 243 (Fla. 3d DCA 2010).
“Upon application for a writ of garnishment … if the defendant is an individual, the clerk of the court shall attach to the writ the … [statutory form] ‘Notice to Defendant’ ….” Fla. Stat. § 77.041(1). The statutory notice contains a form for the judgment debtor to complete if he or she intends to claim an exemption from garnishment. Additionally, a judgment creditor must mail to the judgment debtor: (1) a copy of the writ of garnishment; (2) a copy of the motion for issuance of the writ; and, if the defendant is an individual, and (3) a statutory form “Notice to Defendant” by first-class mail within five business days after the writ is issued or three business days after the writ is served on the garnishee, whichever is later. Fla. Stat. § 77.041(2).
“Once issued, the trial court may consider a request to dissolve the writ under certain circumstances.” Merriman Invs., LLC v. Ujowundu, 123 So. 3d 1191, 1193 (Fla. 3d DCA 2013). Either the defendant or “any other person having an ownership interest in the property” may move to dissolve a writ of garnishment. Rudd v. First Union Nat’l Bank of Florida, 761 So. 2d 1189, 1191 (Fla. 4th DCA 2000).
Grounds to dissolve a writ of garnishment may include, among others, the following:
(1) the underlying final judgment is void, Pineiro v. Am. Exp. Card Servs. Co., 105 So. 3d 614, 616 (Fla. 4th DCA 2013);
(2) the property is located outside of Florida, Am. S. Ins. Co. v. Yellow Cab Co. of Tampa, Inc., No. 8:19-cv-2244-T-36-AEP, 2021 U.S. Dist. LEXIS 10219, at *1 (M.D. Fla. Jan. 20, 2021);
(3) judgment creditor’s failure to furnish notice of the garnishment pursuant to Fla. Stat. § 77.041(2), Cullen v. Marsh, 34 So. 3d 235, 243 (Fla. 3d DCA 2010);
(4) the property is exempt from execution or the debtor has no ownership interest in the property, Cole v. Am. Cap. Partners Ltd., No. 06-80525-Civ-Hurley, 2009 U.S. Dist. LEXIS 122839, at *17 (S.D. Fla. Dec. 14, 2009) (custodial savings account of judgment debtor’s minor son); and
(5) the judgment creditor’s failure to state the amount of the judgment due and owing as of the date of the motion in the judgment creditor’s motion for writ of garnishment, Branch Banking & Tr. Co. v. Hamilton Greens, LLC, No. 11-80507-CIV, 2015 U.S. Dist. LEXIS 121660 (S.D. Fla. Sep. 8, 2015).
Assuming grounds for dissolving the writ of garnishment exists, “[t]he defendant, by motion, may obtain the dissolution of a writ of garnishment, unless the petitioner proves the grounds upon which the writ was issued ….” Fla. Stat. § 77.07(1). “The defendant … shall file and serve a motion to dissolve the garnishment within 20 days … stating that any allegation in plaintiff’s motion for writ is untrue.” Fla. Stat. § 77.07(2). “On such motion this issue shall be tried, and if the allegation in plaintiff’s motion which is denied is not proved to be true, the garnishment shall be dissolved.” Id. “On demand of either party a jury summoned from the body of the county shall be impaneled to try the issues.” Fla. Stat. § 77.08.
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