Florida Asset Protection : Asset Protection Law & Planning in Florida - Florida Homestead Exemption

A continuing writ of wage  garnishment is a powerful collection tool because a creditor can serve a single writ of garnishment on the employer which garnishes all future wages whenever payable into the future. The continuing writ has been used to garnish debtor employees who  receive the same paycheck on a periodic basis. It is unclear whether a continuing writ of garnishment is applicable to a debtor paid only by commissions. That debtor may or may not be entitled to any commission at any given time. Commissions may not be the type of “wages” subject to a continuing writ in which case the creditor would have to serve a separate writ of garnishment any time the creditor believes the debtor is entitled to a sales commission. It is difficult for a creditor to know when a commission may be payable and to serve a writ of garnishment in time to intercept the commission.

I read a post in the Florida Collection Law Blog about an appeals court case which addressed the applicability of continuing writ of garnishments to commission compensation. The court held that commissions are 'wages,' for purposes of Section 77.0305, Florida Statutes, and are therefore subject to a continuing writ of garnishment. The court found that commissions paid for labor or services are within the definition of “wages” and therefore are subject to a continuing writ of garnishment. Baker v. Storfer 2011 WL 222324. Of course, if the debtor is head of household his commissions are exempt from any garnishment pursuant to Florida’s wage exemption.
 

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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.

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