Creditor Does Not Have To Investigate In Advance Debtor's Exemptions From Writs Of Garnishment
Debtors who are head of Florida households sometimes have writs of garnishments served on their employers, and Florida debtors that maintain exempt tenants by entireties financial accounts sometimes suffer writs of garnishment against their exempt accounts. These debtors have to explain their exemption to the judgment creditor, or they have to hire an attorney to file a motion to dissolve the writ based on the applicable exemption. Such debtors often ask me whether their judgment creditor prior to serving a garnishment is required to investigate whether the wages or accounts are exempt from garnishment and whether the creditor can serve a garnishment against an asset that could be exempt from garnishment . These debtors think it unfair for a creditor to make the debtors go to court to assert their exemption while the creditors surprise garnishment has frozen their accounts.
A judgment creditor is not required to check you your possible exemptions prior to serving a writ of garnishment on your employer or your financial institution. Prior to 1967, the predecessor to Florida’s garnishment statute required a judgment creditor to affirmatively negate the garnishment-defendant's ability to claim an exemption; however, the present version no longer requires any affirmative action to check the possible exemptions of a garnishment defendant before pursuing a writ of garnishment.
If you or your attorney notify the judgment creditor in advance that your wages or accounts are exempt and the creditor serves a garnishment thereafter which you subsequently dissolve, you may be able to sue your judgment creditor for the tort of wrongful garnishment.
