What is a garnishee order (Garnishment)?
A legal procedure by which a creditor can collect what a debtor owes byreaching the debtors property when it is in the hands of someone otherthan the debtor.
Garnishment is a drastic measure for collecting a debt. A court order ofgarnishment allows a creditor to take the property of a debtor when thedebtor does not possess the property. A garnishment action is takenagainst the debtor as defendant and the property holder as garnishee.Garnishment is regulated by statutes, and is usually reserved for thecreditor who has obtained a judgment, or court order, against the debtor.
A debtors property may be garnished before it ever reaches the debtor.For example, if a debtors work earnings are garnished, a portion of thewages owed by the employer go directly to the Judgment Creditor andis never seen by the debtor.
Some property is exempt from garnishment. Exemptions are created bystatutes to avoid leaving a debtor with no means of support. Forexample, only a certain amount of work income may be garnished. Under15 U.S.C.A. § 1673, a garnishment sought in federal court may notexceed 25 percent of the debtors disposable earnings each week, or theamount by which the debtors disposable earnings for the week exceedthirty times the federal minimum hourly wage in effect at the time theearnings are payable. In Alaska, exemptions include a burial plot; healthaids necessary for work or health; benefits paid or payable for medical,surgical, or hospital care; awards to victims of violent crime; and assetsreceived from a retirement plan (Alaska Stat. § 09.38.015, .017).
Because garnishment involves the taking of property, the procedure issubject to due process requirements. In Sniadatch v. Family FinanceCorp. of Bay View, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349(1969), the U.S. Supreme Court struck down a Wisconsin statute thatallowed pretrial garnishment of wages without an opportunity to be heardor to submit a defense. According to the Court, garnishment without priornotice and a prior hearing violated fundamental principles of due process.
Garnishment may be used as a provisional remedy. This means thatproperty may be garnished before a judgment against the debtor isentered. This serves to protect the creditors interest in the debtorsproperty. Prejudgment garnishment is usually ordered by a court onlywhen the creditor can show that the debtor is likely to lose or dispose ofthe property before the case is resolved. Property that is garnishedbefore any judgment is rendered is held by the third party, and is notgiven to the creditor until the creditor prevails in the suit against thedebtor.
Garnishment is similar to lien and to attachment. Liens and attachmentsare court orders that give a creditor an interest in the property of thedebtor. Garnishment is a continuing lien against nonexempt property ofthe debtor. Garnishment is not, however, an attachment. Attachment isthe process of seizing property of the debtor that is in the debtorspossession, whereas garnishment is the process of seizing property ofthe debtor that is in the possession of a third party.
