Pre-judgment writs of garnishment against bank accounts and accounts payable can be very effective in collecting funds owed by a debtor. Florida Statutes §77.031 allows a creditor to obtain a writ of garnishment before serving the debtor with any notice. This collection tool is especially important if the creditor beleives the debtor will be quickly disposing of its assets.
In practice, bank garnishees hold double the amount stated in the writ of garnishment and the court may take time before hearing any debtor’s motion to dissolve the writ. Therefore, a debtor with few defenses will often try to quickly resolve the matter so that the balance of the debtor’s funds could be released.
Naturally, there are various requirements before the court will allow for the pre-judgment writ to be issued. Florida Statutes §77.031 requires that the creditor file a lawsuit and an affidavit containing the requisite language set forth in the statute. The motion for issuance of the pre-judgment writ is presented to the court ex parte so that the debtor does not receive notice, otherwise the debtor would remove the funds from its bank account before the bank is served with the writ of garnishment. Once issued, the clerk is required to send a copy of the writ to the debtor so the creditor should make sure the writ is served immediately on the garnishee.
Florida Statutes §77.031 also requires that before the writ is issued by the clerk, the creditor must post a bond that is at least double the amount demanded from the debtor. The bond protects the debtor in the event the creditor improperly obtains the pre-judgment writ of garnishment. The bond will then be used to pay all costs, damages, and attorney’s fees incurred by the debtor from a wrongful garnishment.
The debtor may move to dissolve the writ pursuant to Florida Statutes §77.07(1) and in the case of a pre-judgment writ of garnishment, upon such motion, the burden is on the creditor to demonstrate a ‘reasonable probability’ that a final judgment will be entered in favor of the creditor. This burden may be difficult to prove especially if the debtor claims defenses to the debt. A court may also find that the garnishment is creating a hardship and/or injuring the debtor and release the garnishment on that basis as well. Therefore, when determining whether to use this tool, make sure to consider whether the creditor will be able to meet its burden.
