Florida Garnishment: Bank account garnishment

Tuesday, June 16, 2015

Oops I did not properly address my writ to the sheriff in the county in which garnishee resides

Defendant moved to quash and dissolve a writ of garnishment because the writ was addressed ‘to the sheriff or constable of any county,’ instead of ‘to the sheriff or other proper officer of the county in which said garnishee may reside.

The garnishee appeared in the cause by counsel, and, after motions by the defendant to quash and dismiss the writ of garnishment and to quash the service of the writ, the plaintiff moved to amend the writ.

The Supreme Court stated that even if the writ was defective because it was directed ‘to the sheriff or constable of any county’ instead of to the sheriff of the county in which the garnishees resided, the writ was not void, and the garnishee bank was served in the county of its domicile and appeared in the cause by counsel. The writ, if defective, was amendable, and the motion to amend should have been granted, without dissolving the writ.

American Bank & Trust Co. V Lyle, 130 So. 622 (1930)

If you need a Florida attorney to assist you with collecting on your Final Judgment contact Mendy Lieberman, Esq. mlieberman@sflatty.com, (855) S-FL-ATTY, (305)912-7789 Mendy Lieberman |The Lieberman Law Firm | Miami, Florida

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Monday, June 15, 2015

Settlement Agreement Without Grarnishment Clause Does Not Qualify as a Written Agreement Allowing Continuous Writ of Garnishment

Garnishment is a statutory procedure controlled by Florida Statutes Chapter 77, which was not known to the common law. [i] the thing is statutory requirements of garnishment must be strictly complied with. [ii] Failure to strictly comply with the Garnishment statutory procedure may result in having the final summary judgment of garnishment set aside and waste unnecessary judicial labor. [iii]Not all attorneys/pro se Plaintiffs are able to strictly comply with the Garnishment statutory procedure because they are not familiar with all of the statutory requirements of Garnishment and end up having writ set aside.

For example, after Espirito obtained a default judgment against Williams for failure to pay a note, the parties entered into a settlement agreement, which provided for a payout schedule.[iv] But the agreement was missing a garnishment provision. Williams, who supports three children, became unable to make the required payments.

Although the trial court granted Espirito's motion for continuous writ of garnishment, the appellate court reversed because the court found that Williams, as head of a family, is exempt. The appellate court noted that terms of a settlement agreement do not qualify as a written agreement allowing garnishment.

It is fundamental that garnishment statutes must be strictly construed. A written agreement allowing garnishment to be executed must be in place otherwise the head of a family is exempt from garnishment of disposable earnings.

[i] Pineiro v. Am. Express Card Servs. Co., 105 So.3d 614, 616 (Fla. 4th DCA 2013

[ii] Id.

[iii] Gigliotti Contracting N., Inc. v. Traffic Control Prods. of N. Fla., Inc., 788 So.2d 1013, 1016 (Fla. 2d DCA 2001).

[iv] Williams v. Espirito Santo Bank, 656 So.2d 212 (Fla. 3d DCA 1995),