By Eric B. Martin

Although writs of garnishment are not uncommon, most practitioners do not regularly encounter them. As a result, the steps to enforce, answer or controvert a writ of garnishment can be confusing. However, the procedure need not be mystifying.

Garnishment permits a prevailing party to a lawsuit (the "judgment creditor," usually a successful plaintiff) to reach money or property of the losing party (the "judgment debtor," usually the defendant) held by a third party (the "garnishee defendant"). Most commonly, writs of garnishment are served on banks or employers in an attempt to reach bank accounts and wages. However, a writ may be served upon anyone who holds or controls a debtor's personal property.

While there are strict statutory procedures that must be followed, the overall procedure follows the basic steps described herein. Be sure to check for special requirements in RCW 6.27 before proceeding with your garnishment.

1. The judgment creditor must obtain a judgment. Under limited circumstances, a pre-judgment writ of garnishment may be available. While the basic procedures for post-judgment garnishments apply to prejudgment garnishment, additional rules apply. See RCW 6.26.

   Under most circumstances, the judgment creditor must first enter a judgment and wait for the expiration of the automatic stay period. A writ of garnishment may only be obtained in the county in which the judgment has been entered; thus, a Pierce County judgment must be entered in King County prior to obtaining a King County writ of garnishment.

2. The judgment creditor must determine where the judgment debtor's property is held. If a judgment creditor seeks to garnish wages, it must first determine who employs the judgment debtor. Similarly, if it seeks to garnish a bank account, it must determine which bank holds the account.

3. The judgment creditor must prepare an affidavit, the writ and the answer forms. The caption will list three names: the judgment creditor, the judgment debtor and the garnishee defendant. The basic language of the writ and the answer are found in the statute. There are, however, some special circumstances that require additional language in the writ and answer:

   • A child-support garnishment must state in the caption, "This garnishment is based on a judgment or court order for child support." Earnings exemptions vary for child support garnishments.

   • A garnishment to a bank or financial institution must identify whether the garnishment is served upon the financial institution or one of its branches. If a branch is identified, only deposits maintained at that branch will be reached by the writ. In addition, the writ must include information identifying the judgment debtor, including place of residence and/or business and tax identification number or account number.

   • A "continuing" garnishment to an employer must be captioned as a "continuing lien on earnings" and describe exemptions and the procedure for answering. The answer also contains additional paragraphs.

     The affidavit must state: (1) that the judgment creditor has a current, unsatisfied judgment against the judgment debtor; (2) the amount due under the judgment; (3) the identity of the garnishee defendant; (4) that the affiant has a reason to believe that the garnishee defendant is in possession or control of the judgment debtor's property in an amount exceeding any exemptions; and, (5) whether the garnishee defendant is the judgment debtor's employer.

4. The judgment creditor must file the affidavit in court, pay the proper fee (currently $20) and have the clerk issue the writ.

   Serve the original writ on the garnishee defendant along with a $10 check to the garnishee defendant, four answer forms and three pre-addressed, stamped envelopes - one each for the court, the judgment debtor and the judgment creditor. Service is made either in the same manner as a civil suit or by certified mail.

   If serving a branch of a financial institution, service must be on the manager, cashier or assistant cashier of the branch. If serving the head office of the financial institution, service must be made where designated by the bank for service of process.

5. As to the garnishee defendant, the judgment creditor must file the certified mail return or an affidavit of service.

6. Serve notice of the garnishment on the judgment debtor by certified mail or by personal service. If by mail, it must be sent on or before the date of service of the writ on the garnishee defendant. If by personal service, it must be completed within two days after service on the garnishee defendant. The notice must include copies of the writ, the judgment, the affidavit and the statutory "notice and exemption claim form."

7. The judgment creditor must file a return of service on the judgment debtor or an affidavit of mailing with the court.

8. The garnishee defendant must answer the writ and has 20 days to complete and return the answer forms. Failure to do so could result in a default judgment, in which case the garnishee defendant may be held liable for the entire judgment amount, regardless of the amount of the judgment debtor's property actually held.

   If the garnishee defendant answers that it controls funds belonging to the judgment debtor, it must hold those funds - up to the amount of the judgment - until released by the judgment debtor or until the court directs the garnishee defendant to pay or release the funds.

9. The judgment debtor may, but is not required to, respond. Within 28 days, the judgment debtor may claim exemptions using the exemption claim form.

   To claim exemptions, the form must be completed and returned to the clerk of the court and to the judgment creditor (or its attorney). Alternatively, the judgment debtor may post a bond equal to the judgment amount, which discharges the garnishment.

10. Either the judgment creditor or the judgment debtor may controvert the garnishee defendant's answer. If either party disagrees with the answer, that party may file a controverting affidavit within 20 days.

    The affidavit must state that the party has reason to believe and does believe that the answer is incorrect, stating with particularity how the answer is incorrect. Copies of the controverting affidavit must be served on all parties by mail. The garnishee defendant may, within 20 days, file an affidavit in response.

11. Judgment. If the garnishee defendant answers that it has no property belonging to the judgment debtor and that answer is uncontroverted, the garnishee defendant is discharged without liability and without further action by the court.

If the garnishee defendant fails to answer or answers that it holds non-exempt funds of the judgment debtor and that answer is uncontroverted, the court will enter judgment on behalf of the judgment creditor. The garnishee defendant will then be ordered to turn over the property to the judgment creditor. Failure to do so may result in contempt proceedings or enforcement as with any other judgment - including by garnishment!

If a matter is controverted, the parties must note the matter for hearing for summary disposition or, in rare cases, for trial.

What Else You Should Know
A few other issues deserve mention. When garnishing wages over a period of time, the judgment creditor should use a continuing writ of garnishment, which will reach non-exempt earnings owed at the time the writ is served and those that accrue during the next 60 days. By filing subsequent writs, the judgment creditor can keep a garnishment going without break until the judgment is satisfied.

If a continuing writ of garnishment is obtained, the judgment creditor must mail to the garnishee defendant a second set of four answer forms and an additional $10 check, as in step 5. The second answer forms contain different language from the initial answers. Check the statute.

When answering a garnishment for wages, a certain minimum amount is automatically exempt. That amount is the greater of 75% of the disposable earnings (i.e., gross earnings less federal income tax withholding, FICA, Medicare and worker's compensation) or 30 times the federal hourly minimum wage per week (i.e., $154.50 per week or $669.49 per month). The exemption is lower if the garnishment is for enforcement of a child support order.

Generally, employers may not retaliate against employees who are subject to garnishments. However, the employer may impose a fee of $20 for the initial answer and $10 for the second answer to a continuing garnishment. Furthermore, if more than three creditors serve garnishments during a 12-month period, the employer may discharge the employee.

If a garnishee defendant fails to answer and the judgment creditor obtains a default judgment, the garnishee defendant may be able to set aside part of the judgment if it acts within seven days of receiving a writ of execution on the default judgment. However, the garnishee defendant will be responsible for costs and attorneys' fees incurred due to the failure to answer, plus $100 or the amount of the judgment debtor's property held at the time the writ was served, whichever is greater.

An award of attorneys' fees is mandatory in the event of a trial on a controverted answer or in cases of a garnishee defendant's default.

Finally, while most practitioners are not familiar or comfortable with the details of garnishment, some entities are. In particular, banks have well-established routines in place to respond to garnishments. If you fail to properly serve a financial institution, don't expect it to overlook your error. The courts strictly enforce the garnishment statutes and many entities subject to garnishment will not hesitate to require strict adherence to the statutory procedures.