I recently had a potential client contact me concerning the consequences of a garnishee’s failure to answer a writ of garnishment. Florida law provides that a judgment creditor may serve an employer to garnish a debtor’s wages as well as any other entity that may be holding funds of the debtor, such as a bank. Once served with the writ of garnishment, the employer, bank or other entity becomes the “garnishee.” The garnishee then has 20 days to serve its answer to the garnishment stating the funds, if any, that the garnishee has belonging to the debtor.
The garnishment statute provides that if the garnishee fails to answer within 20 days, the creditor may obtain a default against the garnishee. However, what happens next is often confusing. Florida Statutes §77.081(2) states that upon entry of a judgment against the debtor, judgment shall be entered against the garnishee but not in any amount higher than the judgment entered against the debtor. Florida Statutes §77.083, on the other hand, states that the judgment against the garnishee shall be no more than what is stated as being held in the answer. So then, how much should the judgment be against a garnishee who never files an answer?
In my experience, upon entry of a default against the garnishee, the courts usually enter a judgment for the full amount due against the debtor. This creates a clear incentive for garnishees to file answers to avoid entry of judgments against them for the full amount if in fact the are holding less than that. The Florida Supreme Court, however, considered this same set of facts in the case of Security Bank, N.A. v. BellSouth Advertising & Pub. Corp., 679 So.2d 795 (Fla. App. 3 Dist., 1996) and determined that even though a default is entered against the garnishee who fails to answer a writ of garnishment, there still must be notice and a hearing as to the amount of damages before a judgment may be entered against the garnishee. Therefore, before a judgment may be entered against a defaulted garnishee there must be a duly noticed hearing as to the amount of damages. Otherwise, the judgment is void.