The concept of garnishment in Florida
Whether it's a continuing writ of garnishment (against your salary or wages, hence the “continuing” part) or a writ of garnishment (against bank accounts and single payment sources), the use of wage and bank garnishments by creditors to recover money from consumers has soared in the last decade. The main reason for this is that the process has a powerful practical and psychological effect on the consumer. Simply put, it's an effective method for a creditor to recover money from a consumer and the surge in popularity probably isn't going to slow down any time soon.
Garnishment is a mechanism provided for under Florida law which allows a creditor to “bypass” you individually and seek payment directly from persons or institutions which owe you money such as an employer or a bank. Instead of coming to you and requesting a voluntary payment at your convenience, your creditor goes straight to your employer or bank and involuntarily (to you) diverts the money to them to satisfy your debt.
This technique has grown in popularity in Florida because for a creditor it is inexpensive, straightforward and EFFECTIVE. Particularly with a continuing writ of garnishment, in Florida the withholdings will continue automatically until the judgment is PAID IN FULL including all assessable interest, costs, and fees. Depending on the scenario, this process can persist for YEARS.
Yes, that's years, plural. I have personally filed and litigated wage garnishments which lasted as long as 5 years before the balance in full was paid. If someone is paid every 2 weeks, that would equate to a total of 130 garnishment withholdings.
The garnishment process in Florida
Garnishment actions in Florida are governed by Chapter 77, Florida Statutes.
When the garnishment is filed according to Florida law and in strict compliance with Florida statutes, the money that is withheld or frozen as a result is presumed to be free from exemption and free to be disbursed to the creditor who initiated the garnishment to pay down your debt.
Under current Florida law, you are NOT entitled to notice prior to the service of the writ of garnishment. It is only after the writ is served that you will be provided with the requisite statutory notices and forms provided by statute.
If you do nothing, the court will enter a final judgment of garnishment and the plaintiff will be entitled to the funds withheld (bank garnishment) or to the continuing periodic withholding from your salary or wages until the judgment is paid in full, including all interest, costs and fees assessed in the judgment.
When a garnishment hits you will almost certainly be taken by surprise. Certain exemptions to which you may be eligible for must be affirmatively raised or are deemed waived.
You only get one shot at claiming, and THEN SUPPORTING your entitlement to any potential exemptions allowed under Florida law. To reiterate, you do not get to keep attempting to assert an exemption until you prevail. If you try to handle the situation on your own and fail, there is no do-over.
There are short, strict timelines involved in garnishment processes and you should have an experienced attorney review your case so that you take advantage of all the protections available to you in the manner required by Florida law.
I can't tell you how many thousands of times I saw debtors fail to properly handle garnishment proceedings and wound up having their bank accounts and wages successfully garnished to help satisfy their old debts. While not everybody is eligible to claim an exemption from garnishment, many who are simply don't present their case adequately to qualify for the exemptions they seek.
Simply checking the box on the form that you are provided is not enough to protect yourself.
That form (titled “Claim of Exemption and Request for Hearing') is simply the notice that you provide to the creditor to let them know that you intend to assert certain exemptions which may protect your money.
If you take nothing else from this page, hear this:
YOUR MONEY AND/OR PROPERTY ARE EFFECTIVELY NOT EXEMPT UNDER FLORIDA LAW UNLESS AND UNTIL A JUDGE DECIDES SO.
Simply claiming an exemption or believing that your property is exempt based on your understanding of the law means little. I recently published an article which touches on a concept quite similar to this one.
One of the most serious considerations I discuss with potential clients is the functioning of the judicial system in handling garnishment cases. The court does NOT exist to assist you with your claims. It exists to carry out the judicial functions of government. Walking into court and laying down a story of how unfortunate your current situation is or how mean the Plaintiff has been will not help your case. You must present a coherent, legally recognizable defense or exemption if you have any chance at prevailing.
You will need to go to court and present your case through the introduction of documents and witness testimony to CARRY YOUR BURDEN that the funds which are subject to the garnishment are exempt under Florida or federal law. If you cannot do this, you will lose your claim and a final judgment of garnishment will be entered in favor of the creditor and against your bank account or wages.
Your case will need to adhere to the same rules of civil procedure and the same evidence code which applies in all civil cases throughout Florida. There are no special rules that make presenting competent and admissible evidence easier or more straightforward in garnishment proceedings than in any other civil proceeding.
What I can do to help you when you are facing a wage or bank garnishment in Central Florida
When I represented the creditors and debt buyers, I filed thousands of wage and bank garnishments throughout Florida. I have an intimate working knowledge of the process and I know exactly how to appropriately formulate and assert appropriate and effective defenses to the process.
This could include something as straightforward as a well drafted motion or as involved as the introduction of documents and the testimony of multiple witnesses at an evidentiary hearing to support your exemptions. The particular strategy involved will depend heavily on the specifics of you and your unique situation.
I offer a free consultation to review your garnishment case and provide you with options based on my years of litigating thousands of these types of cases all over Florida. If I believe that there is nothing that can be done for your situation I will tell you that and provide you with potential alternatives.
I will warn you though, the ideal time to attempt to negotiate within a garnishment IS NOT when you have already lost your claim of exemption hearing.
At that point, the creditor already has its rights secured and has no reason to work with you at all. This is why its vital for you to reach out for qualified advice as early in the process as possible.
Lately, many consumers have been contacting me after being subjected to a garnishment believing that bankruptcy is their only option to avoid the garnishment. In many cases this is simply not true.
I think you might be surprised to find that you have more options than you first thought.
Many of the garnishment cases I take are based on a reasonable fixed, flat fee. If you are serious about defending your rights and properly handling your garnishment case, contact me today at 407.984.5270 to find out if I can help.
One more thing.
I know from experience that many garnishments happen to “hit” on a Friday. This will leave you the weekend to try to research what to do and have it hanging over your head. Feel free to call or email me, even on weekends, to see if there is anything that I can do to help.
At the Law Office of Alex McClure, I pride myself on working closely with my clients to provide practical solutions to their consumer debt problems.
I do everything in my power to provide options that my clients didn't even know existed before consulting with me.
Contact the Law Office of Alex McClure today to find out how I can help you create a sustainable financial future for yourself.
The Law Office of Alex McClure provides services in Lake Mary, Sanford, Longwood, Deltona, Deland, Orlando and all of Seminole, Volusia, Orange, Brevard and Lake Counties.