Once you have a judgment, and after the applicable stay of execution has passed (10 days in superior court, 30 days in district court), you can start the process. The court clerk will issue a writ of garnishment without prior notice to the debtor upon submission of an affidavit of the judgment creditor attesting that there is an unsatisfied judgment against the debtor and that the judgment creditor has a good-faith belief that a bank, employer, or other person has money or property of the debtor or owes the debtor money. In district court cases the creditor's attorney can self-issue the writ on the same grounds. The creditor must prepare and submit the appropriate forms; the clerk merely accepts and stamps the writ and hands it back so it can be served.
Service of a Writ of Garnishment
Once the writ has been issued, it must be served on the bank, employer, or other person -- the "garnishee defendant" or "garnishee" for short -- by personal service or certified mail. Written proof of service is required, such as an affidavit of service or the signed return receipt. The writ must be served with 4 answer forms, 3 stamped envelopes addressed to the court, judgment debtor, and judgment creditor, and a $20 check payable to the garnishee defendant (except wage garnishments). In addition, a copy of the writ must be served on the debtor along with the affidavit upon which it was issued, a copy of the judgment, exemption claim form, and statutory notice of garnishment rights. Strict compliance with the service and notice requirements is required; failing to include the proper number of answer forms, envelopes, or failing to give the judgment debtor the proper notice could invalidate the garnishment.
Effect of a Writ of Garnishment
Upon service, the garnishee must hold all payments it owes to the debtor and all funds or property of the debtor in its possession. A bank must hold all funds on deposit in the debtor's name and place a freeze on a safe deposit box. An employer must hold a percentage of the debtor's earnings. The garnishee defendant must file and serve an answer to the writ, stating whether anything was withheld, and what was withheld. The answer must be filed and served within 20 days. The creditor will then obtain a court order directing the garnishee defendant to pay over that money or property to the court, and once tendered to the court it will be disbursed to the creditor and applied to the judgment debt.
How a Wage Garnishment Works
A wage garnishment, or "continuing lien on earnings", is effective for 60 days from the date of service of the writ. When served with a wage garnishment, an employer must file and serve a first answer form within 20 days indicating whether the debtor actually works there and, if so, confirming that wages are being withheld. A second answer form must be submitted to the employer after 60 days, and the employer must file and serve a second answer indicating the total amount of wages withheld. An employer can withhold up to 25% of a debtor's earnings under a wage garnishment (the rest is exempt and must be paid to the debtor by law). A creditor must have a new writ issued and served every 60 days to continue garnishing wages.
Within 28 days of service the debtor may claim that the property being garnished is exempt. State law provides that certain property is exempt from garnishment, such as retirement accounts, unemployment compensation, and disability payments. For example, if a bank account holding only unemployment benefits was garnished, it could be claimed as exempt. If a debtor claims an exemption, the creditor must either dispute the exemption claim or release the funds within 7 days. If disputed, a hearing is held to determine the validity of the exemption claim. The losing party could have to pay the other party's attorney fees.
Controversion of Answer
If the garnishee's answer is incorrect or disputed, it can be controverted by filing and serving an affidavit within 20 days stating the reasons the answer is disputed. For example, if the answer says "no funds" but the creditor knows the garnishee was holding money belonging to the debtor when the writ was served, the creditor can controvert the answer. The garnishee may respond within 20 days and if the matter is not resolved a hearing is held to determine whether the answer is correct. The losing party could have to pay the other party's attorney fees.
A Default Judgment Can be Entered if the Garnishee Fails to Answer
A garnishee that doesn't respond to a writ of garnishment can be held liable for the entire debt owed by the debtor. If the garnishee fails to answer within 20 days, and then fails to respond to a notice that a default judgment will be entered if an answer is not filed in an additional 10 days, the creditor can enter a default judgment against the garnishee for the entire judgment balance and try to collect the debt from the garnishee as well as the original debtor.
The garnishing creditor can recover statutory fees and costs including attorney fees of $250 or 10% of the judgment balance, whichever is less, plus court fees and costs of service. Costs are only allowed when the garnishee actually holds money or property belonging to the debtor.
If a garnishment is wrongfully issued, the creditor can be liable for any damages suffered by the debtor. For example, if the creditor issues a writ of garnishment for more than is actually owed and a bank freezes all of the debtor's funds causing the debtor to be unable to close on a million dollar real estate deal, the creditor could be liable for the debtor's damages including lost profits.
If You Aren't Sure How to Proceed, Hire a Collection Attorney
This is only an overview of the garnishment process. Because garnishment is a complicated statutory procedure that can result in liability for attorney fees or even damages if not done correctly, it is recommended that judgment creditors retain a collection attorney. As the Washington Supreme Court stated in Knettle v. Kennett, 12 Wash.2d 261 (1942), "A Writ of Garnishment is not to be trifled with, as many a layman has found, to his cost. It can only be prudently dealt with by going to the expense of employing an attorney."
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