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Attachment and Garnishment of Wages and Income

Author johnbsims3
Admin 

#1 - Posted: 22 Oct 2006 05:48 - Edited by: johnbsims3 
Attachment and Garnishment
Wrongful Attachment or Garnishment
In General; The Cause of Action

What constitutes wrongfulness

Generally speaking, if the plaintiff in the action in which the attachment or garnishment is issued succeeds in maintaining his main action, and also the attachment or garnishment, there is no cause of action for wrongful attachment or garnishment.[FN54] An attachment is sued out wrongfully where no grounds for attachment exist,[FN55] but if any one of the grounds upon which a plaintiff predicates his right to attachment is true, the attachment is not wrongfully sued out.[FN56] An attachment is wrongful where it appears that the plaintiff in the attachment has no cause of action or that no indebtedness exists.[FN57] However merely because, under a counterclaim, the accounts may be balanced and the plaintiff denied a recovery does not necessarily mean that the plaintiff did not have a cause of action.[FN58] It has been said that whether a garnishment is wrongful depends upon whether the steps taken by the party seeking the writ comply with the statute authorizing such relief.[FN59] It has also been stated that a prejudgment garnishment without notice or opportunity for hearing is, as a matter of law, wrongful.[FN60]

The fact that the defendant in the principal action finally prevailed and that the attachment was dissolved has been held conclusive that the attachment was wrongful.[FN61] A like rule may apply where the attachment is dissolved upon the merits,[FN62] as where it is based on insufficient grounds,[FN63] even though the attaching creditor recovers judgment in the main action.[FN64] So too, mistakenly commencing an action at law which could not be maintained, and obtaining issuance of a writ of garnishment by which the principal defendants in the proceedings were deprived of possession of their property constitutes a wrongful garnishment, regardless of whether the principal action was dismissed with prejudice after trial upon the merits or dismissed without prejudice because of procedural error.[FN65] However, there is authority that the mere fact that a writ of attachment or garnishment was quashed or that the suit was abandoned or dismissed does not give rise to a presumption that the attachment or garnishment was wrongful.[FN66] Dissolution of an attachment for a mere informal error is not sufficient proof that it was wrongfully sued out.[FN67] Likewise, a mere judgment of involuntary nonsuit against the plaintiff in the principal action has been held not to show that the attachment was wrongful.[FN68]

To recover damages for wrongful garnishment, a defendant need not prove that plaintiff lacked probable cause as is required in case of alleged wrongful attachment; rather, if the plaintiff does not recover a judgment against the defendant, the garnishment is wrongful, even though the primary action is dismissed without prejudice.[FN69]


[FN54] Ross v. Peck Iron & Metal Co., 264 F.2d 262 (4th Cir. 1959); Exchange Lumber & Mfg. Co. v. Thomas, 71 Idaho 391, 233 P.2d 406 (1951); Westerman v. Comerica Bank-Texas, 928 S.W.2d 679 (Tex. App. San Antonio 1996), reh'g overruled, (Sept. 3, 1996) and writ denied, (Nov. 26, 1996) and reh'g of writ of error overruled, (Jan. 10, 1997).

If the plaintiff recovers judgment upon the proceedings in attachment, as well as in the main action, the defendant is concluded thereby. Waring v. Fletcher, 152 Ind. 620, 52 N.E. 203 (1898).
[FN55] Andrew Brown Co. v. Painters Warehouse, Inc., 11 Ariz. App. 571, 466 P.2d 790 (Div. 1 1970); Wiley v. Howard, 180 Ill. App. 3d 721, 129 Ill. Dec. 502, 536 N.E.2d 186 (2d Dist. 1989); Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. Ct. App. 1996), reh'g denied, (Apr. 5, 1996) and review denied, (June 11, 1996); Brown v. Peoples Nat. Bank of Wash., 39 Wash. 2d 776, 238 P.2d 1191 (1951) (distinguished by, Wagner Development, Inc. v. Fidelity and Deposit Co. of Maryland, 977 P.2d 639 (Wash. Ct. App. Div. 2 1999)).

An attachment may be said to have been sued out wrongfully where grounds upon which plaintiff predicates its right to attachment are false. Rockport Co. v. Wedgewood, Inc., 447 N.W.2d 126 (Iowa 1989).

A garnishment is wrongful if the facts set forth in the affidavits prescribed by statute are untrue. Chandler v. Cashway Bldg. Materials, Inc., 584 S.W.2d 950 (Tex. Civ. App. El Paso 1979).
[FN56] Painter v. Munn, 117 Ala. 322, 23 So. 83 (1898); Hiers v. Cohen, 31 Conn. Supp. 305, 329 A.2d 609 (Super. Ct. 1973); Brown v. Peoples Nat. Bank of Wash., 39 Wash. 2d 776, 238 P.2d 1191 (1951) (distinguished by, Wagner Development, Inc. v. Fidelity and Deposit Co. of Maryland, 977 P.2d 639 (Wash. Ct. App. Div. 2 1999)).
[FN57] Hansen v. Northrup, 243 Iowa 1101, 54 N.W.2d 815 (1952); Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. Ct. App. 1996), reh'g denied, (Apr. 5, 1996) and review denied, (June 11, 1996); First Nat. Bank of Commerce v. Boutall, 422 So. 2d 1159 (La. 1982).
[FN58] Hansen v. Northrup, 243 Iowa 1101, 54 N.W.2d 815 (1952).
[FN59] Chandler v. Cashway Bldg. Materials, Inc., 584 S.W.2d 950 (Tex. Civ. App. El Paso 1979).
[FN60] Texas Commerce Bank Nat. **** v. Tripp, 516 S.W.2d 256 (Tex. Civ. App. Fort Worth 1974), dismissed, (Apr. 9, 1975) and (declined to follow on other grounds by, First Nat. Bank of Midland v. Stoutco, Inc., 530 S.W.2d 619 (Tex. Civ. App. San Antonio 1975)).
[FN61] Smith v. Summers, 215 Ala. 690, 112 So. 344 (1927); Dynatronics, Inc. v. Knorr, 247 So. 2d 70 (Fla. Dist. Ct. App. 2d Dist. 1971); Neri v. J.I. Case Co., 207 Ill. App. 3d 409, 152 Ill. Dec. 488, 566 N.E.2d 16 (2d Dist. 1991); Gale v. Transamerica Corp., 65 Ill. App. 3d 553, 22 Ill. Dec. 92, 382 N.E.2d 412 (1st Dist. 1978) (declined to extend by, Leone Grain and Supply, Inc. v. Boers, 251 Ill. App. 3d 330, 190 Ill. Dec. 439, 621 N.E.2d 611 (3d Dist. 1993)); Ashland Oil, Inc. v. Arnett, 507 N.E.2d 561 (Ind. 1987); Newby v. U. S. Fidelity & Guaranty Co., 49 Wash. 2d 843, 307 P.2d 275 (1957) (superseded by statute on other grounds as stated in, Wagner Development, Inc. v. Fidelity and Deposit Co. of Maryland, 977 P.2d 639 (Wash. Ct. App. Div. 2 1999)).

The wrongfulness of the attachment is res judicata by virtue of a judgment against the attaching creditor in the attachment suit. Powell v. Schultz, 118 S.W.2d 25 (Mo. Ct. App. 1938).

The proceeding with which the court is concerned in this connection is the attachment proceeding. If the attachment is discharged on the merits, the fact that a suit on an obligation which developed into a cause of action for the plaintiff after the attachment proceedings had been terminated is immaterial. Blankenship v. Staton, 348 S.W.2d 925 (Ky. 1961).
[FN62] Duo-Therm Division, Motor Wheel Corp. v. Sheergrain, Inc., 504 S.W.2d 689 (Ky. 1973); Houma Mortg. & Loan, Inc. v. Marshall, 664 So. 2d 1199 (La. Ct. App. 1st Cir. 1995); Williard v. Federal Surety Co., 91 Mont. 465, 8 P.2d 633 (1932).
[FN63] Bash v. Howald, 59 Okla. 116, 157 P. 1154 (1916), error dismissed, 244 U.S. 648, 37 S. Ct. 743, 61 L. Ed. 1370 (1917).
[FN64] Even though an attaching creditor may recover judgment in the main action, he is concluded from saying the proceedings in attachment were not wrongful if he fails to sustain the attachment. Waring v. Fletcher, 152 Ind. 620, 52 N.E. 203 (1898).
[FN65] Maib v. Maryland Cas. Co., 17 Wash. 2d 47, 135 P.2d 71 (1943).
[FN66] American Surety Co. of New York v. Florida Nat. Bank & Trust Co., 94 F.2d 126 (C.C.A. 5th Cir. 1938); Hobson & Associates, Inc. v. First Print, Inc., 798 S.W.2d 617 (Tex. App. Amarillo 1990).
[FN67] Boatwright v. Stewart, 37 Ark. 614 (1881).
[FN68] Jansen v. Pollastrine, 10 Alaska 316, 1942 WL 1310 (Terr. Alaska 1942); Siegel v. Northern Boulevard & 80th St. Corp., 31 A.D.2d 182, 295 N.Y.S.2d 804 (1st Dep't 1968).
[FN69] Huzzy v. Culbert Const. Co., 5 Wash. App. 581, 489 P.2d 749 (Div. 1 1971).




Malice, want of probable cause, and wrongfulness, as essential elements

The rule, according to some cases, is that the common-law action of malicious and wrongful attachment depends upon the presence of both malice and want of probable cause.[FN16] According to other cases, however, the rule, independent of statute, is that the mere fact that an attachment was wrongfully issued and levied gives rise to a cause of action for damages, even though the plaintiff was not actuated by malice or had probable cause for the belief that ground for attachment existed.[FN17] Under this rule it has been held that in an action by one whose property is wrongfully seized in attachment proceedings against another, malice and want of probable cause are not essential elements of the action.[FN18]

Under statutes expressly or impliedly creating a cause of action for an attachment or garnishment if it is wrongful, or if the proceeding is dismissed, it is generally held that malice and want of probable cause need not be shown to warrant recovery.[FN19] However, some statutes specifically make want of probable cause an element of a cause of action for wrongful attachment or garnishment;[FN20] and under such statutes it has also been deemed essential to the cause of action that the suing out of the writ was wrongful.[FN21]


[FN16] Ray v. City Bank & Trust Co. of Natchez, Miss., 358 F. Supp. 630, 36 Ohio Misc. 83, 65 Ohio Op. 2d 112, 13 U.C.C. Rep. Serv. (CBC) 355 (S.D. Ohio 1973); Delisi v. Garnett, 257 Md. 4, 261 A.2d 784 (1970); Montgomery v. Hunt, 227 Mont. 279, 738 P.2d 887 (1987); Carlson v. Schroeder, 164 Neb. 443, 82 N.W.2d 416 (1957); Clarence E. Morris, Inc. v. Vitek, 85 Nev. 652, 461 P.2d 864 (1969); Pittsburg, J., E. & E. R. Co. v. Wakefield Hardware Co., 138 N.C. 174, 50 S.E. 571 (1905); Fortman v. Rottier, 8 Ohio St. 548, 1858 WL 44 (1858); Crouter v. United Adjusters, Inc., 259 Or. 348, 485 P.2d 1208 (1971), appeal after remand, 266 Or. 6, 510 P.2d 1328 (1973).
[FN17] Neri v. J.I. Case Co., 207 Ill. App. 3d 409, 152 Ill. Dec. 488, 566 N.E.2d 16 (2d Dist. 1991); Lukens v. First Nat. Bank, 151 Kan. 937, 101 P.2d 914 (1940); Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. Ct. App. 1996), reh'g denied, (Apr. 5, 1996) and review denied, (June 11, 1996); Dickinson v. Maynard, 20 La. Ann. 66 (1868); Delisi v. Garnett, 257 Md. 4, 261 A.2d 784 (1970); Farrar v. Talley, 68 Tex. 349, 4 S.W. 558 (1887); Carothers v. McIlhenny Co., 63 Tex. 138, 1885 WL 7001 (1885).
[FN18] Neri v. J.I. Case Co., 207 Ill. App. 3d 409, 152 Ill. Dec. 488, 566 N.E.2d 16 (2d Dist. 1991); Miller v. Clayco State Bank, 10 Kan. App. 2d 659, 708 P.2d 997 (1985), review denied, (Dec. 19, 1985) and (declined to follow on other grounds by, Delta Fertilizer, Inc. v. Weaver, 547 So. 2d 800 (Miss. 1989)); Peterson v. Wiesner, 62 Nev. 184, 146 P.2d 789 (1944).
[FN19] Pollock v. Gantt, 69 Ala. 373, 1881 WL 1163 (1881); Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. Ct. App. 1996), reh'g denied, (Apr. 5, 1996) and review denied, (June 11, 1996); Glover v. Hanks, 396 So. 2d 949 (La. Ct. App. 1st Cir. 1980), writ denied, 398 So. 2d 526 (La. 1980); Grimestad v. Lofgren, 105 Minn. 286, 117 N.W. 515 (1908); Oklahoma State Bank of Ada v. Reed, 143 Okla. 131, 288 P. 281, 85 A.L.R. 635 (1929); Gordon v. Kentucky Midland Coal Co., 152 Tenn. 367, 278 S.W. 68, 42 A.L.R. 1052 (1925); Lamb v. Day & Peck, 8 Vt. 407 (1836); Commercial Inv. Trust v. William Frankfurth Hardware Co., 179 Wis. 21, 190 N.W. 1004 (1922).

Cause of action for wrongful garnishment or attachment, unlike cause of action for malicious prosecution based upon wrongful garnishment, does not require that malice and lack of probable cause be shown. Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. Ct. App. 1996), reh'g denied, (Apr. 5, 1996) and review denied, (June 11, 1996).

Failure to substantiate allegations that the actions were willful and malicious will not defeat a claim for actual damages, where it is shown that the garnishment was wrongful. Lukens v. First Nat. Bank, 151 Kan. 937, 101 P.2d 914 (1940).
[FN20] Clarence E. Morris, Inc. v. Vitek, 85 Nev. 652, 461 P.2d 864 (1969); Harris v. Lipson, 167 Va. 365, 189 S.E. 349, 108 A.L.R. 912 (1937); Brown v. Peoples Nat. Bank of Wash., 39 Wash. 2d 776, 238 P.2d 1191 (1951) (distinguished by, Wagner Development, Inc. v. Fidelity and Deposit Co. of Maryland, 977 P.2d 639 (Wash. Ct. App. Div. 2 1999)).
[FN21] Brown v. Peoples Nat. Bank of Wash., 39 Wash. 2d 776, 238 P.2d 1191 (1951) (distinguished by, Wagner Development, Inc. v. Fidelity and Deposit Co. of Maryland, 977 P.2d 639 (Wash. Ct. App. Div. 2 1999)).


Pleading

As in other types of actions, all the elements essential to the existence of the cause of action must be set forth in the plaintiff's pleading to recover damages for a wrongful or malicious attachment or garnishment;[FN45] and the same is true, of course, as to a counterclaim in which such a recovery is sought.[FN46] In an action seeking to enforce the common-law remedy for malicious attachment, the complaint, petition, or declaration must contain substantially the same allegations as are essential in stating a cause of action for malicious prosecution.[FN47] Allegations that the writ was sued out maliciously and without probable cause are indispensable where the action is based upon malicious attachment[FN48] or where the plaintiff wishes to recover exemplary damages.[FN49] In setting out these elements, malice and want of probable cause need not be alleged in terms; it is deemed sufficient if it contains language and sets out facts of the same import as the words in question.[FN50]

Where the action is based upon the statute and only actual damages are claimed, it is unnecessary to allege malice and want of probable cause[FN51] unless the statute makes them elements of the cause of action.[FN52] It has been held that in an action by one whose property has been wrongfully seized in attachment proceedings against another, malice and want of probable cause need not be pleaded.[FN53]

The allegations concerning damages should show the real damages sustained and intended to be relied on. The complaint, or the like, is good without an averment of special damage, as the law implies nominal damages from the act complained of,[FN54] but if the plaintiff wishes to recover special damages, he must embody appropriate averments in his pleading.[FN55] Damages to credit, where recoverable,[FN56] are special damages and must be pleaded.[FN57] The same is true of damages to reputation[FN58] and of attorneys' fees for defending the attachment or garnishment.[FN59]

All substantive defenses are available to the defendant in an action for wrongful attachment,[FN60] and he may also allege any matters which will reduce the amount of recovery.[FN61]


[FN45] Bulk Oil (ZUG) A.G. v. Sun Co., Inc., 583 F. Supp. 1134 (S.D.N.Y. 1983), judgment aff'd, 742 F.2d 1431 (2d Cir. 1984), cert. denied, 469 U.S. 835, 105 S. Ct. 129, 83 L. Ed. 2d 70 (1984); Fain v. Hutto, 236 Ga. 915, 225 S.E.2d 893 (1976) (distinguished by, Jacobson v. Garland, 227 Ga. App. 81, 487 S.E.2d 640 (1997)); Grocery Supply Co. v. Winterton Food Stores, 722 So. 2d 94 (La. Ct. App. 2d Cir. 1998), reh'g denied, (Jan. 14, 1999); Musso v. Aiavolasiti, 439 So. 2d 1184 (La. Ct. App. 4th Cir. 1983); Deitz v. Palaigos, 120 Md. App. 380, 707 A.2d 427 (1998), reconsideration denied, (Apr. 28, 1998) and cert. denied, 351 Md. 162, 717 A.2d 385 (1998); Linsin v. Transportation Ins. Co., 691 S.W.2d 393 (Mo. Ct. App. E.D. 1985); Aetna Cas. & Sur. Co. v. Raposa, 560 S.W.2d 106 (Tex. Civ. App. Fort Worth 1977), writ granted, (Jan. 18, 1978) and cause dismissed, (Jan. 18, 1978).

[FN46] National Bond & Investment Co. v. McCoy, 263 S.W. 1089 (Tex. Civ. App. Amarillo 1924).
[FN47] Carlson v. Schroeder, 164 Neb. 443, 82 N.W.2d 416 (1957).

Where there was no allegation in connection with a count of the complaint, which alleged vexatious litigation, that broker's prior litigation had terminated in favor of landowners, attachment which was incident to the prior suit did not provide a cause of action for wrongful attachment against broker. Hiers v. Cohen, 31 Conn. Supp. 305, 329 A.2d 609 (Super. Ct. 1973).
[FN48] Beyersdorf v. Sump, 39 Minn. 495, 41 N.W. 101 (1888); Carlson v. Schroeder, 164 Neb. 443, 82 N.W.2d 416 (1957); Pittsburg, J., E. & E. R. Co. v. Wakefield Hardware Co., 138 N.C. 174, 50 S.E. 571 (1905); Crouter v. United Adjusters, Inc., 259 Or. 348, 485 P.2d 1208 (1971), appeal after remand, 266 Or. 6, 510 P.2d 1328 (1973).
[FN49] United States Fidelity & Guaranty Co. v. Miller, 218 Ala. 158, 117 So. 668 (1928); Stumpf v. Pederson, 180 Okla. 408, 70 P.2d 101 (1937); Stevens v. Simmons, 61 S.W.2d 122 (Tex. Civ. App. El Paso 1933) (garnishment); Snyder v. Stokes, 34 S.W.2d 918 (Tex. Civ. App. San Antonio 1930), writ granted, (July 8, 1931) and aff'd, 55 S.W.2d 557 (Tex. Comm'n App. 1932) (attachment).
[FN50] Spaids v. Barrett, 57 Ill. 289 (1870).

When the facts set forth in a complaint are such that if true the law will infer both malice and want of probable cause from them, they are tantamount to specific allegations of malice and want of probable cause. Pittsburg, J., E. & E. R. Co. v. Wakefield Hardware Co., 138 N.C. 174, 50 S.E. 571 (1905).

A complaint which alleges that the affidavit for the attachment was wholly false in every particular, and that the plaintiff in the attachment suit knew it to be so when he made it, is sufficient as against a general objection at the trial to the admission of any evidence under it. Beyersdorf v. Sump, 39 Minn. 495, 41 N.W. 101 (1888).

In Forrest v. Collier, 20 Ala. 175, 1852 WL 286 (1852), it was held that an averment that the attachment was done "wrongfully and fraudulently, to injure," took the place of an averment of malice.
[FN51] Reliable Mut. Hail Ins. Co. v. Rogers, 61 Okla. 226, 160 P. 914 (1916).
[FN52] 605.
[FN53] Peterson v. Wiesner, 62 Nev. 184, 146 P.2d 789 (1944).
[FN54] Donnell v. Jones, 13 Ala. 490, 1848 WL 426 (1848).
[FN55] Kilbourne v. McAllister, 179 Okla. 267, 65 P.2d 516 (1936).
[FN56] 632.
[FN57] Bradford v. Lawrence, 18 Ala. App. 138, 90 So. 809 (1921); Kyd v. Cook, 56 Neb. 71, 76 N.W. 524 (1898) (holding that a complaint specifically alleging that the plaintiff's credit was injured and destroyed because of the fact that the sheriff attached and removed his property and locked up and closed his place of business is broad enough to admit evidence of all damages sustained by the plaintiff in consequence of the wrongful attachment, including his loss of character, credit, and business).
[FN58] If there is no averment of particular damage resulting from the loss of reputation, credit, or business, or of the withdrawal of particular customers, proof of such loss, if properly objected to, is not admissible. Donnell v. Jones, 13 Ala. 490, 1848 WL 426 (1848).
[FN59] Adair v. James M. Peterson Bank, 61 Utah 159, 211 P. 683 (1922).

[FN61] Scott v. Childers, 24 Tex. Civ. App. 349, 60 S.W. 775 (1900), writ refused.


Executions and Enforcement of Judgments

Post Judgment Garnishment and Other Supplementary Proceedings and Remedies
Remedies Available
Relief from Supplementary Remedies

Recovery of damages for mental anguish, distress, suffering, or the like, in action for wrongful attachment, garnishment, sequestration, or execution, 83 A.L.R.3d 598
What constitutes malice sufficient to justify an award of punitive damages in action for wrongful attachment or garnishment, 61 A.L.R.3d 984
Liability of creditor for excessive attachment or garnishment, 56 A.L.R.3d 493
A garnishment which becomes wrongful may provide the rightful owner of the funds with a cause of action against the garnishment creditor for all actual damages sustained,[FN1] without proof of malice or lack of probable cause.[FN2] A statute may provide that a garnishee may be awarded damages if the answer of a garnishee is controverted without good cause.[FN3] Legal malice may be a required element for a wrongful garnishment action, and such legal malice may be inferred from a lack of probable cause or gross negligence or great indifference to persons, property, or the rights of others.[FN4] Postjudgment garnishment is wrongful if the factual allegations in the garnishor's affidavit, which are required to indicate that, within the garnishor's knowledge, the debtor does not possess property in the state subject to execution sufficient to satisfy the judgment, are false.[FN5]

Similarly, a debtor may have the right to recover wages, wrongfully paid, if there is a failure to account for exemptions or if the judgment is satisfied, expires, voided or otherwise fails.[FN6] However, some wage garnishment statutes, while granting a person whose wages have been wrongfully garnished a cause of action against one or more of the parties to the garnishment proceeding, may decline to permit that claim to be asserted in the garnishment proceeding itself.[FN7] Moreover, although a garnishee who pays a garnishor more than the garnishor is entitled to is relieved from liability, that garnishee may be required to make up any overpayment.[FN8]


[FN1] Miller v. Clayco State Bank, 10 Kan. App. 2d 659, 708 P.2d 997 (1985); Mihalogiannakis v. Jones, 563 So. 2d 306 (La. Ct. App. 4th Cir. 1990).
[FN2] Kentucky Farm Bureau Mut. Ins. Co. v. Burton, 922 S.W.2d 385 (Ky. Ct. App. 1996).
[FN3] Fletcher v. Anderson, 29 Kan. App. 2d 784, 31 P.3d 313 (2001).
[FN4] Burshan v. National Union Fire Ins. Co. of Pittsburgh, PA, 805 So. 2d 835 (Fla. Dist. Ct. App. 4th Dist. 2001).
[FN5] Jamison v. National Loan Investors, L.P., 4 S.W.3d 465 (Tex. App. Houston 1st Dist. 1999).
[FN6] In re Perry, 48 B.R. 591 (Bankr. M.D. Tenn. 1985).
[FN7] Baptist Convention of Georgia v. Henry, 187 Ga. App. 551, 370 S.E.2d 813 (1988).
[FN8] Anderson-Tully Co. v. Brown, 383 So. 2d 1389 (Miss. 1980).

Author johnbsims3
Admin 

#2 - Posted: 22 Oct 2006 06:47 
Wage Exemption Cases


Purpose of statute providing that no process shall issue when it is sought to attach money or other thing due for personal labor or services of a head of the family is to relieve the family of wage earners from expense and hardship which would result when payment of earnings due breadwinner of the family are either delayed or impounded by judicial process. F.S.A. 77.03
Noland Co. v. Linning, 132 So.2d 802 (Fla. 1st DCA 1961)

Statute providing that when levy is made by writ of execution the debtor shall make inventory of the whole of his personalty as exempt from sale merely provides method for implementing organic constitutional right of head of household to exemption of $1,000 worth of personalty from forced sale under process of any court and does not abridge the constitutional provision. F.S.A. 222.06, F.S.A. Const. Art 10, s.1.
Azar v. Graham, 194 So.2d 684 (Fla. 3rd DCA 1967), certiorari discharged 204 So.2d 193.

Under Florida law, in order to qualify as a head of a family for purposes of bankruptcy exemptions, there must be at least two persons living together in relation of one family and one of them must be the head of family. F.S.A> Const. art 10, s.4.
For purposes of determining whether a debtor or a head of family under Florida law and thus entitled to a bankruptcy exemption, there must be a legal or moral obligation to discharge the duties of head of family and support by itself is not determinative.
Under Florida law, an able-bodied husband cannot abdicate his presumptive position as head of the family, for bankruptcy exemption purposes, and as long as the family relationship remains intact, the husband is deemed to be head of family unless he is unable to discharge his duties due to permanent illness, incarceration or mental incompetence.
Under Florida law, a married woman who supports a dependent of other persons is not head of a family, for bankruptcy purposes, so long as the relationship of husband and wife remains intact.
Under Florida law, a married woman may be head of a family under certain conditions during the existence of a marriage; however, there is a presumption that the husband is the head of a family, for bankruptcy exemption purposes.
Under Florida law, even though debtor earned more that her husband, she did not qualify to be head of a family unit consisting of herself and her husband and, therefore, her exemption claim could not be recognized.
Matter of Barnes, 4 B.R. 600 (Bkrtcy. M.D. Fla. 1980)


Under Florida law, determination of whether legal status as head of a household exists depends upon whether the person asserting that status has a legal or moral duty to support, care for, and train members of the family group. F.S.A. 222.01 et seq.; F.S.A. Const. Art 10, s.4.
In re Gurtler, 30 B.R. 233 (Bkrtcy. S.D. Fla. 1983)

There cannot be more than one head of a family for exemption purposes, when family is living together in one household and, although married woman may be head of household for exemption purposes, when man and woman are legally married and marital relationship is intact, there is presumption that husband is head of household. F.S.A. 222.20; F.S.A. Const. Art. 10, s.4.
In re Schachne, 6 B.R. 236 (Bkrtcy. S.D. Fla. 1980)


Debtor was not entitled to claim exemption on basis that he was head of family by providing principal means of support for his mother, with whom he lived, in light of fact that debtor paid his mother approximately $500 per month, out of that sum she paid car payment of approximately $220 on 1981 automobile, which debtor used exclusively, and from remaining amount, debtor's mother paid additional expenses for debtor's benefit. F.S.A. Const. Art. 10., s.4.
In re Bennett, 15 B.R. 136 (Bkrtcy. S.D. Fla. 1981)


The wage exemption provided by Florida statute was designed to protect wages of residents and citizens of Florida and not wages earned by one who at the time relevant was not a resident and citizen of Florida and whose wages were not paid by a Florida employer. F.S.A. 222.11
Matter of Szuets, 22 B.R. 805 (Bkrtcy. M.D. Fla. 1982)

Florida only recognizes state law exemptions and nonbankruptcy federal law exemptions. F.S.A. 222.20.
In re Himmelstein, 203 B.R. 1009 (Bkrtcy. M.D. Fla. 1996)

Under Florida wildcard exemption for "personal property to the value of one thousand dollars," it is the individual claming exemption who is entitled to determine what items of personal property to exempt. F.S.A. Const. Art. 10, s.4.
Chapter 7 debtor whose equity in motor vehicle exceeded, by just about $600, the $1,000 motor vehicle exemption accorded to debtors under Florida statute could utilize constitutional wildcard exemption for "personal property to the value of one thousand dollars," in order to exempt his remaining equity in vehicle; statutory and constitutional exemptions were not mutually exclusive, but could be combined by debtor in order to claim more than a $1,000 exemption in his shortbed truck.
Under Florida wildcard exemption for "personal property to the value of on thousand dollars," any type of personal property may be exempted, provided that the value does not exceed $1,000.
In re Rutter, 247 B.R. 334 (Bkrtcy. M.D. Fla. 2000)


For purpose of provision in Florida Constitution exempting personal property to value of $1,000 from forced sale or judgment lien, "personal property" can include cash." F.S.A. Const. Art 10, s.4.
Schlosser v. State, 602 So.2d 628 (Fla. 2nd DCA 1992)


Under Florida wage exemption statute, earnings from business controlled by debtor are not exempt.
Under Florida wage exemption statute, debtor must show that compensation qualifies as earnings from personal services. F.S.A. 222.11.
In re Zamora, 187 B.R. 783 (Bkrtcy. S.D. Fla. 1995)

Since purpose of exemption statutes is to protect not only husband but also his family from destitution, such statutes will not, unless contrary intention is clearly shown, be construed to enable husband to claim its benefit against very persons to whom he owes obligation of support and maintenance.
Anderson v. Anderson, 44 So.2d 652 (Fla. 1950)

Protection and enforcement of rights
s.105 Establishment of right of exemption in general.
Procedure established by garnishment statute for asserting head of household exemption is entitled to great deference from the courts.
F.S.A. 222.12.
Cadle Co. v. G & G Associates, 737 So.2d 1136, rehearing denied, appeal after remand 741 So.2d 1257.

s.110 Garnishment
Statute providing that no process shall issue when it is sought to attach money due for personal labor or services of head of the family residing in the state, imposed a mandatory duty on a court to refrain from issuing a writ of garnishment where it was not first made to appear by sworn averments of the judgment creditor that the money sought to be garnisheed was not due for the personal labor or services of a head of a family residing in the state. F.S. 77.03, 222.11.
Noland Co. v. Linning, 132 So.2d 802 (Fla. 1st DCA 1961)


s.127 Contest and determination of claim
Evidentiary hearing was required before court could determine whether Chapter 7 debtor, a self employed, licensed insurance broker, earned renewal commissions from insurance policies previously sold by debtor as independent contractor or as compensation for labor or personal services, as required for application of Florida statute exempting earnings of head of family that are compensation for labor or personal services; it was not clear from record at what point debtor became broker as opposed to "captive agent", and whether renewal commissions at issue were generated by policies that debtor sold as "captive agent" or as independent broker, or combination of two, and it was unclear extent to which debtor serviced insurance contracts beyond what was minimally required to secure renewals and whether renewals were typically automatic. F.S.A. 222.11
In re Lee, 190 B.R. 953 (Bkrtcy. M.D. Fla. 1995)

Statutory provision requiring that if facts contained in affidavit claiming exemption are not timely denied under oath, writ of garnishment shall be returned and all proceedings under it shall cease must be strictly construed in favor of debtor. F.S. 222.12.
Miami Herald Pub. Co. v. Payne, 358 So.2d 541 (Fla. 1978), opinion adopted 360 So.2d 122.

When wife filed motion for continuing writ of garnishment, but failed to deny former husband's head of family affidavit within two days after his notice was served on her, continuing writ should have been returned to her and all garnishment proceedings should have ceased. F.S. 77.0305, 222.11, 222.12.
Vetrick v. Hollander, 566 So.2d 844 (Fla. 4th DCA 1990)

All proceedings under writ of garnishment for amount due from former husband for child support terminated by operation of law upon expiration of time for former wife's filing of sworn denial of former husband's affidavit of exemption on ground that he was head of a family residing within Florida and that wages to be garnished were due for his personal labor and services, notwithstanding fact that final judgment of dissolution of marriage which provided for child support was otherwise subject to enforcement by garnishment. F.S. 222.11, 222.12.
Schwarz v. Waddell, 389 So.2d 210, (Fla. 4th DCA 1980) quashed, cause remanded 405 So.2d 978, on remand 422 So.2d 61, petition for review denied 434 So.2d 889.

End of s.127


s.137
Equity has complete jurisdiction over homestead and exemptions. F.S.A. Const. Art. 10, sections 1,2.
Hillsborough Inv. Co. v. Wilcox, 13 So.2d 448, 152 Fla. 889

s.140
Equity was authorized to assume jurisdiction in suit by judgment creditor to restrain sale, in mortgage foreclosure suit, of personal property described in judgment debtor's inventory where debtor claimed exemption. F.S.A. Const. Art 10; F.S.A. 222.06
Shollar Crate & Box Co. v. Passmore, 4 So.2d 530 (Fla. 1941), 148 Fla. 466.

s.147 Pleading

In garnishment proceeding, whether judgment debtor is head of family residing in Florida is a question of fact be alleged and proved, as respects debtor's right to an exemption. F.S.A. Const, Art. 10.
Tracy v. Lucik, 189 So. 430, 138 Fla. 188 (Fla. 1939).

The garnishor has two days from the date of service to deny the allegations, of garnishee claiming he is exempt from garnishment under head of family exception, by contravening affidavit. F.S. 222.12
Should the garnishor fail to timely file a sworn statement disputing facts alleged to support a creditor's exemption as head of family, all proceedings under the writ must cease. F.S. 222.12
Hill v. Haywood, 735 So.2d 539 (Fla. 2nd DCA 1999), rehearing denied, review dismissed 751 So.2d 50.

s.148 Evidence

Under Florida law, it is generally assumed that debtor is honest, and entitled to benefit of exemption, unless and until the contrary is proven.
In re Lazin, 221 B.R. 982 (Bkrtcy. M.D. Fla. 1998)

Chapter 7 debtor proved that household goods were exempt under Florida law as tenancy by the entireties property; debtor testified that goods were purchased with funds from joint account that he and wife held as tenants by the entireties and that goods were intended to be owned as tenants by the entireties.
In re Allen, 203 B.R. 786 (Bkrtcy. M.D. Fla. 1996)

Burden is on objecting party to show that party claiming exemption is not entitled to it.
In re Brown, 165 B.R. 512 (Bkrtcy. M.D. Fla. 1994)

Debtor would not be denied the $1,000 personal property exemption granted by Florida Constitution, on ground that value of personal property at issue exceeded this $1,000 cap, where creditors objecting to exemption failed to put forth any evidence as to value of assets. Fla. Const. Art. 10, s. 4(a)(2).
In re Rightmyer, 156 B.R. 690 (Bkrtcy. M.D. Fla. 1993)

Party objecting to claimed exemption has burden of proving that claim is improper.
In re Sanders, 72 B.R. 124 (Bkrtcy. M.D. Fla. 1987)

Party objecting to a Florida exemption must prove by a preponderance of the evidence that the debtor harbored the requisite fraudulent intent, which may be inferred from extrinsic evidence.
In re Simms, 243 B.R. 156 (Bkrtcy. S.D. Fla. 2000)

No presumption arises merely from character or use of personal property that it is held as estate by entireties rather than as tenancy in common for purpose of exemption in bankruptcy; rejecting Hagin v. Hagin, 353 So.2d 949, Bankr. Code. 11 U.S.C.A. s. 522(b)(2)(B).
Debtor's testimony that he and his wife were both employed at time that household goods and furnishings were purchased, that property was bought for their joint use with their joint earnings and that debtor considered property to be jointly owned with his wife was insufficient to establish that household goods and furnishings were exempt, as against bankruptcy trustee, as estate by entirety held jointly with wife, who was not debtor.
In re Marchini, 45 B.R. 187 (Bkrtcy. S.D. Fla. 1984)

Where there was no evidence that husband considered debtor head of their family, where debtor's own testimony in totality seemed to indicate that she did not view herself as head of whole family, and where evidence did not demonstrate that her share of income from family business was sufficient to or did support herself and children, debtor failed to overcome presumption that husband was head of family so as to be entitled to head of household bankruptcy exemption. F.S. 222.20, Fla. Const. Art. 10, s.4.
In re Schachne, 6 B.R. 236 (Bkrtcy. S.D. Fla. 1980)

In action by former wife seeking to garnish former husband's wages to satisfy judgment she had obtained against former husband for unpaid child support, when former husband moved to dissolve garnishment and filed affidavit of exemption alleging that he was head of family, and thus, that his wages were exempt from garnishment, former wife was required to file controverting affidavit. F.S. 222.11, 222.12.
Former wife's failure to file controverting affidavit merely operated as admission of facts alleged in former husband's affidavit, which claimed garnishment exemption of statute governing exemption of wages from garnishment, and did not preclude trial court's consideration of whether statute governing garnishment of amounts due for child support superceded statute governing exemption of wages from garnishment as matter of law in these circumstances. F.S. 222.11, 222.12.
Sokolsky v. Kuhn, 386 So.2d 806 (Fla. 1st DCA 1980), quashed, cause remanded 405 So.2d 975.

Employers and Employees Florida Homestead Services -- Florida Homestead Exemption Act MiniBB / Employers and Employees /
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