One of the ways a creditor can collect on a judgment it has obtained against a debtor is by garnishing the debtors wages. This process involves moving the court for entry of a judgment of garnishment directing the debtors employer to pay directly to the creditor a portion of the debtor’s pay for each pay period. The debtor has various bases on which to avoid this garnishment of wages. The most common is asserting that the Debtor is the head of household.
As will be discussed below, it is important that if a person is served with notice that a motion for a writ of garnishment has been filed against them that they respond promptly and assert their exemption. Failure to do so will result in the court approving garnishment of the debtor’s wages. And, while the exemption can be asserted at a later time, it will only exempt the debtor from future garnishment. The funds already garnished will not be able to be recovered.
In LAMB v. HOUSEHOLD FINANCE CORPORATION III, 409 B.R. 534 (N.D. Fla. 2009), the debtor’s wages were garnished eventhough she was head of household because she did not timely assert her right to the exemption as head of household. She attempted to recover the amounts previously garnished by suing the Creditor and Debt Collector for Wrongful Garnishment and violation of the Florida Consumer Credit Protection Act (FCCPA). The basis for both the allegation of Wrongful Granishment and violation of the FCCPA for attempting to collect a debt known not to be due was that as part of the original action, resulting in the judgment that is now the basis of the garnishment, the Debtor filed a document indicating that she was a single mother with kids. It was the Debtors position that this put the Creditor on notice that the debtor was head of household.
The element of a cause of action for Wrongful Garnishment are (1) commencement or continuance of a garnishment proceeding, (2) the commencement of the garnishment action by the defendant in the subject action, (3) the bona fide termination of the garnishment action in favor of the debtor, (4) the absence of probable cause for a writ of garnishment, (5) presence of legal malice, and (6) injury to the debtor. LAMB, 409 B.R. 534, 539 (N.D. Fla. 2009). All of these factors must be shown to prevent the dismissal of a complaint for Wrongful Garnishment.
The LAMB court discusses the effect of the debtor filing a response in the original action indicating that she is a “single mother with kids”, and the debtors assertion that this filing resulted in the creditor not having propable cause to institute the garnishment action (element no. 4 above). Section 77.01, Florida Statutues, entitles, “[e]very person who has…recovered a judgment in any court against any person or entity has a right to a writ of garnishment…”, and the statute does not require the party seeking garnishment to affirmatively negate the debtor’s entitlement to claim an exemption. Thus, the fact that the debtor filed a letter in response to the original complaint indicating she was a “single mother with kids” did not prevent the creditor from seeking garnishment.
Florida Consumer Credit Protection Act
The debtor also claims that the garnishment action violated the FCCPA by attmepting to enforce a debt when the creditor knew the debt was not legitimate. The debtor asserted that the creditor seeking the garnishment knew that the garnishment was not legitimate because of the response letter filed indicating that the debtor was a single mother with kids.
The LAMB court rejects this assertion on two grounds. First, the assertion of being a single mother with kids does not establish all requirements of the head of household exemption, namely that she also provides more than half of the financial support for the kids. Second, the court returns to its discussion of Chapter 77, Florida Statutes, which does not require the creditor to affirmatively negate the debtors right to a claim of exemption. The Court notes, “[Chapter 77] provides no procedure for the prior determination of head of family before the issuance of a writ of garnishment”. The court continues, “…the responsibility of claiming an exemption from garnishment is on the Defendant, and a garnishment plaintiff’s mere knowledge of the garnishment defendant’s potential ability to claim an exemption, does not make its pursuit of the garnishment the knowing pursuit of an illigitimate debt or the knowing assertion of a right that does not exist”.
The result reached in this case demonstrates the court’s position that eventhough the debtor had previously informed the creditor and the court of her status as head of household, it was still her burden to properly assert this exemption at the proper time in the garnishment procedings, and failure to do so resulted in her wages being garnished.