Do you have a Florida judgment and are looking to garnish a debtor’s bank account? I’ve garnished hundreds of bank accounts and have learned some things along the way. I’ve also defended many garnishments as well.
I’ve seen many mistakes made by counsel for creditors that can result in dismissal of the garnishment entirely. While some mistakes may be fixable or result in delays, it’s better to get it right the first time.
Here are my must-know tips when garnishing a debtor’s bank account in Florida. This also applies to other accounts as well such as brokerage accounts.
1. Give the bank the SSN of the debtor at the time of garnishment.
When the writ of garnishment is issued, I give the process server the writ of garnishment along with a letter addressed to the bank informing them of the debtor’s social security number. The reason why is because the bank/garnishee has up to 1 business day to act expeditiously on the writ under section 77.04, Fla. Stat.
By providing the social security number, it can speed up the time for the bank to look up the debtor and any associated accounts. If the debtor has a common name, the bank may be unsure which account is related to them.
In the past, I’ve had banks call me asking for further details to locate any relevant accounts, so this cuts down on that extra time.
2. Mail the required notices to the debtor on time.
Under Florida’s garnishment statute, it requires certain notices to be sent to the debtor. Garnishment statutes are strictly construed, so that failure to meet a required deadline can result in the dissolution of the garnishment proceeding. See Little Brownie Properties, Inc. v. Wood, 328 So. 3d 1049, 1050 (Fla. 5th Dist. App. 2021) (dissolving garnishment since notice was sent 5 days late).
For example, the creditor must provide notice of the garnishment to the debtor within a specified period of time. See s. 77.041(2), Fla. Stat. (“The plaintiff must mail, by first class, a copy of the writ of garnishment, a copy of the motion for writ of garnishment, and, if the defendant is an individual, the “Notice to Defendant” to the defendant’s last known address within 5 business days after the writ is issued or 3 business days after the writ is served on the garnishee, whichever is later…”) (emphasis added).
Additionally, the creditor must provide notice to the debtor of the garnishee’s answer. See s. 77.055, Fla. Stat. (“Within 5 days after service of the garnishee’s answer on the plaintiff or after the time period for the garnishee’s answer has expired, the plaintiff shall serve, by mail, the following documents: a copy of the garnishee’s answer, and a notice advising the recipient that he or she must move to dissolve the writ of garnishment within 20 days after the date indicated on the certificate of service in the notice if any allegation in the plaintiff’s motion for writ of garnishment is untrue…”) (emphasis added).
Note: there are a few Federal cases where the courts were more lenient on tardy notices, but this is not binding on the Florida state courts. It is better to not have to deal with this issue in the first place by ensuring notices are given on time.
3. Make sure to timely object to any exemptions alleged by the debtor.
Under Florida law, there’s various exemptions potentially available to individual debtors to prevent garnishment of funds such as head of family wages or retirement funds, as examples.
If the debtor claims exemptions, then under section 77.041(1), Fla. Stat., you’ll need to object to them either within 8 business days if the exemptions were hand delivered to you, or 14 business days if you were mailed a copy.
If you miss these deadlines, the garnishment will be dissolved and the funds released. This is stated in 77.041(1), Fla. Stat., “If the plaintiff or the plaintiff’s attorney fails to file an objection, no hearing is required, the writ of garnishment will be dissolved and your wages, money, or property will be released.”
4. Do not give prior notice to the debtor or their counsel of the garnishment.
Oftentimes, debtors will move assets in order to prevent collection of a judgment. However, let’s say you’ve located one of their existing bank accounts.
The good news is that a creditor is not required to give prior notice to a judgment debtor before a writ of garnishment is issued. See United Pres. Life Ins. Co. v. King, 361 So. 2d 710, 713 (Fla. 1978); Ainbinder v. Hingson, 2018 WL 6605247, at 1 (M.D. Fla. July 23, 2018) (“Post-judgment writs of garnishment may be issued ex parte and without notice to the judgment debtor.”).
If filing for a writ of garnishment online, make sure you do not serve the motion for writ of garnishment on the debtor’s attorneys, assuming they had prior counsel for the underlying case.
5. You must normally wait 15 days after the filing of your judgment before proceeding with garnishment.
Under Florida law, a judgment creditor normally must wait 15 days, after the filing of their judgment, before requesting a writ of garnishment to be issued. This is because the writ of garnishment can only be issued after the expiration of the time to move for a rehearing, which is 15 days, pursuant to Fla.R.Civ.P. 1.550(a) and 1.530(b).
Note: there are exceptions to this 15-day wait such as if you can convince the judge to give you a special order from the Court allowing more immediate execution. This special order usually uses the language that the execution must “issue forthwith.”
6. Give notice to all required third-parties disclosed in the bank’s answer.
As mentioned above, there are certain notice requirements related to the garnishment. After you receive the garnishee’s answer, there may be 3rd parties you need to serve with the notice required by s. 77.055, Fla. Stat. While joint accounts may be garnishable, you still need to give notice to the co-owners if disclosed.
For example, the debtor may share an account with their wife, family member, or even a business partner. These people need to be given notice under s. 77.055, Fla. Stat. (“The plaintiff shall serve these documents on the defendant at the defendant’s last known address and any other address disclosed by the garnishee’s answer and on any other person disclosed in the garnishee’s answer to have any ownership interest in the deposit, account, or property controlled by the garnishee…) (emphasis added).
Otherwise, your garnishment may be subject to challenge or delay due to these 3rd parties not being given their due process rights to raise defenses.
Well, I hope that these tips help you with collecting upon your judgment and having a successful garnishment. Keep in mind, I do not address all requirements of the statute, so make sure to read Chapter 77 fully.