Readers of this Blog know how to title their bank accounts so they are protected from judgment creditors. Suppose a married person owns his accounts as tenants by entireties or in the name of a separate legal entity, and the creditor nevertheless issues a writ of garnishment of the bank free temporarily freezing the money in these exempt accounts. What do you do ?
The first thing you should do is file a standard form with the court claiming your right to exempt this money. Better yet, have your lawyer file a motion to dissolve the garnishment. It is important to know that the Florida statutes entitle you to an “immediate” hearing on your motion to dissolve a garnishment. Be prepared to bring copies of bank statements, signature cards, or account agreements to show the judge.
Next, you and your attorney may consider taking more aggressive actions, especially if you believe your creditor knew the accounts should be exempt and garnished them anyway to harass you or extort a settlement. Florida common law allows a debtor to sue its creditor for the tort of wrongful garnishment if the creditor acted maliciously. A suit is proper after the garnishment is dissolved, and the wrongful garnishment must be brought as a new and separate action rather than a counterclaim. Courts have held that lack of probable cause to garnish an account implies malice. The leading case is Strickland v. Commerce Loan Company. The facts necessary to support a claim of wrongful garnishment may also support recovery on theory of abuse of process.
As a practical matter, if a debtor is surprised by garnishment of entireties account, wage accounts, or other exempt financial accounts the first step is to contact the creditors attorney, explain your exemption, and offer reasonable evidence. Give the creditor a chance to withdraw the garnishment. Most will do so if they see they have frozen an exempt account. If the creditor persists then a motion to dissolve the garnishment followed by a new lawsuit against the creditor may be appropriate.
What if the judgment creditor had previously served Ints in Aid of Execution whereby the debtor is requested to provide bank account info, including titling of the account…if the debtor fails to respond is the creditor innoculated from a wrongful garnishment claim?
does the creditor have to send the debtor papers writ of garnishment before bank freezes money?seems have bounce checks everwhere.have not recieved any paper work.how do i feed my family?all funds have been frozen.
if a creditor gets a writ of garnishment against my wages. Where and what do I need to file in order to stop this action? Please help, thanks
I filed an Exemption with the court stating that my husband (who is the plaintiff) – (our bank acct was not just frozen but they took out his whole paycheck as a payment toward the balance —strangely …our house is in his name and I am surprised that with such a large sum owed that they would not have just filed a lien on the house). He makes less than 500.00 a week and he is the head of the household supporting not only he and myself but also our son. I did not request a hearing but it has been more than two business days and now he says that the creditors attorneys are playing games with him telling him that they cant do anything unless he pays the two 50.00 payments that he owes (one was overdue and the other would be for this month). I am not bringing in any money at the present time and his income is just getting us by until he earns some commissions (wholesale mtg brker). I would like to follow the advice you mentioned in the post titled Garnishment of Exempt Bank Accounts, dated Feb 27th. but we do not have an attorney. I was a paralegal ages ago and can draft the Motion but who signs it? or should I just do another exemption but request a hearing this time? Most Sincerely, L {BTW/I typed this with a very tired squirley little boy on my lap and if there are errors…grammer, content flow or otherwise…please forgive}
Can my SS be guarnashhed in florida and what are the laws regarding freezing of accounts ????
How do I notify my bank of a suspected freeze of my account for guarnashiment
I understand that If I notify them and they still allow the account to be frozen they too are liable for wrongful actions
Is there a time limit for comingling deposits. MY ACCOUNT HAS HAD SOME SMALL DEPOSITS INTO IT OTHER than Social Secuity, how much time negates, but I will not make any more
Bill
Where in this blog do you discuss how to set up bank accounts to protect against judgment creditor levy? I searched the archives but could not find it. Bill
Can a Creditor Freeze a Bank Account in Florida if the Main Person on the account has nothing to do with the situation? The person who is being sued doesnt work and has no income all money going into the account is from the head of household. This is if they get a judgement just want to be prepared.
25% of my paychecks are being garnished because of a car that was reposessed. I have filed a claim of exemption, because I am head of household and I make less than $500 a week. I am lost because I received a letter from the court saying that I have to show proof that I am head of household, but they have not sent me any forms or told me anything that I have to do to prove that I am head of household, please help me
I have a letter from a Leasing Management Company agreeing to let me out of my lease where my business was located due to continous leaks, and then file a Breach of Contract Suit of which I answered pro se. thinking I was protected and nerver heard anymore until one day a year later I went to use mt check card and it was declined and I found out that there had been a writ of garnishment issued, They froze our Bank accounts and Annuitities. I retained an attorney who let me know 2 months later that he didn’t feel he was qualified to represent me and a Final Judgment was issued. I have filed my appeal and now trying to prepare my brief again pro se.
The funds he took from Bank were all Social Security and Annuity proceeds from my husbands direct deposits. He knew from the Fact Information Sheet that all income was derived from these two sources. I feel that due to lack of due process on his part he and his client committed a wrongful tort act, since as of Oct 13,2007 he is not happy with the $ 33,000.00 he has taken, he now wants $ 50,000.00 and wants me to drop the appeal. and still has our annuitities frozen so I can’t hire an Attorney.
Can anyone please help me ?
my husband just received a letter saying that our account was frozen due to a repossessed car from about 12 years ago. can they do this? is this legal after so many years have gone by? and what should our next step be?
can social security and veterans retirement be taken in a bank freeze? The bank (CU) is out of state and has three names on the account, this my only income.
My Bank account was garnished and i request a hearing ,so i don’t have money to hire a lawyer.The problem is that the bank account is under my husband and myself.How can i defend myself in court?.Could you please help me?
Thank . Yesenia
My wife had a credit card many years ago. When I underwnet several surgeries, she fell behind on the payments. We are now both retired & our only income is my social security & her retirement checks. The day after our direct deposits went into our checking account, a freeze was put on our savings & checking accounts. The bank also put a freeze on our daughters accounts because my wife is a co-signer for emergencies only. The attorneys returned half of the funds, but all of that went back to our daughter. Can they take our social & retirement checks? And, I was also told that they can take our car.
I was a signer on my mothers bank account due to her disablities. I am going through financial difficulties and I want to know if it is legal for my mothers bank account to be garnished because I am a signer on her account. She collects disability checks once a month.
I see all the same questions of what we are going thru right now, actually the day before Thanksgiving. Please tell me how to get these answers. Is there a way to email me at tops2you2@aol.com if you have any suggestions or regrerts of what not to do. My daughter and my husband are suffering due to my debt. Please help!!! Leanne
I have a mortgage that is currently in default. After agreeing to a MODIFICATION repay plan, and waiting for receipt of paperwork to sign, the Lender hired a 3rd party who “broke into my house “, changed the locks ( ruined my door latches ), locked the garage door, and cut of the water at the street. All this was done while I was at work!
**** Please note, I own the Property, and no Sale date has taken place***
I immediately called the Lender/Servicer, and they admitted to this action, but refused to allow me back in property unless I paid-up-to-date. I informed them of the Modification papers, agreement with the Negotiator. The Lender said they could not access the Negotiator’s comments, and still refused me entry.
I believe I have been injured, and want to bring suit. Do I have a Case?????
Hi,
My bank account was garnished, I filed the claim for exemption for head of household and the garnishment was removed and my money returned to me. My question is: What now? Can the creditor take any futher action against me? I did not need to produce any evidence of head of household as they missed the filing date to object to my claim of exemption. I attempted to make my monthly payments again to them but they are not cashing them. I sense there is something going on…any suggestions? Thanks
Thank you for this website! It gave me all of the critical information I needed to prove my bank account was exempt from garnishment! I will call to thank you personally.
I would like to know if a bank (not the creditor) that freezes a tenants- by-the-entireites bank account after being served with a writ of garnishment for just one spouse has any liability? I think if banks are going to set up tenants-by-the-entireties accounts for its customers, it should have some obligation to look at the account ownership before just freezing any account with the one spouses name on it. I just had this happen and insisted that my bank had some responsibility for improperly freezing a TBE account.
I look forward to your response.
New judgment against me. $4000. Default on Credit card
Can plaintiff garnish SSDI $794/mnth
And cease only property. A motorcycle value unknown no blue book value