What is Garnishment?
A creditor, the plaintiff, sues an individual, the defendant, for a money judgment in civil court. If the creditor wins, court awards the plaintiff a civil money judgment. This judgment, without more, just sits there accumulating interest. When a creditor wants to collect on this judgment, the creditor will sometimes file a civil court proceeding in the court that gave the judgment, to attach money held by others (e.g., a bank account) of the defendant or wages.
This proceeding is called a garnishment. Generally, there has to be a judgment before a garnishment can issue. The plaintiff in a garnishment action is called the judgment creditor. The defendant is called the judgment debtor, and the employer or the bank is called the garnishee. The judgment creditor is asking the court to make the garnishee (bank or employer) turn over money of the debtor.
A bank garnishment is a court order obtained by the judgment creditor telling the debtor’s bank to hold sums in the debtor’s bank account until a hearing can occur and the court can decide whether the money should be turned over to the creditor.
A wage garnishment is a court order obtained by the judgment creditor telling the judgment debtor's employer to set aside a percentage of the debtor's wages for a period up to six months, at which time, a hearing will occur and the court will decide whether the funds should be turned over to the creditor.
When the garnishee (bank or employer) receives a garnishment from the court, the garnishee is required to hold aside, or freeze, money of the judgment debtor until the court date on the upper right hand side of the garnishment summons, called the RETURN DATE. The bank or employer is required to hold money in an amount up to the amount of the judgment amount (not more) listed on the summons. Any money that goes into a bank account during the garnishment period, such as a direct deposit, will be frozen. For wage garnishments, the employer calculates the amount to be withheld from each paycheck, and begins to hold that money from the paycheck to send on to the court
Any checks that the judgment debtor has written on a garnished bank account that have not cleared, are returned unpaid. In addition, the judgment debtor is usually charged fees for the unpaid (bounced) checks, other account fees and a fee of approximately $100.00 paid to the bank that the account holder agreed to pay when they opened the account.
There are ways that the garnished funds in a bank account or garnished wages can be ordered by the court to be returned to the judgment debtor. If the court orders the return of the garnished funds, the court will dismiss the garnishment and return the money to the debtor. This does not mean that the debtor does not owe the underlying judgment. The debtor continues to owe that judgment amount until the creditor has been paid. All it means is that the debtor is able to get this garnished money back. The judgment creditor can keep trying to garnish the judgment debtor's bank account or wages until the judgment is paid.
Along with the garnishment summons, the debtor will also receive a document with the title Request for Hearing - Garnishment Exemption Claim [Form DC-454].
The Garnishment Exemption Claim Form (Claim) lists 21 federal and state exemptions that the debtor can possibly claim to exempt the money and have it returned to the debtor. The debtor claims an exemption by checking the box that applies and attaching proof to the exemption claim if necessary, and filing it with the court that issued the garnishment, listed at the top of the garnishment summons. If you receive a garnishment summons, it is a good idea to call a private attorney or Legal Aid to get assistance with filing an exemption claim in court and requesting an exemption of the funds.
For more information on garnishments, see For Attorneys.