With certain exceptions, often involving fraud or deceit of the debtor, a creditor may not garnish assets of a debtor without first obtaining a judgment against the debtor.
There are many other steps a debtor must take before garnishment including docketing the judgment.
A creditor also must find out where there are assets or finances that may be garnished. Once the creditor learns what the debtor owns that may be garnished, the creditor must send notice to the debtor of the creditor’s intent to garnish, allow time for the debtor to list the assets of the debtor that are exempt from garnishment and for the court to hold any hearings over such disputes, and serve a summons on the person holding the funds to be garnished.
Two main types of garnishment are
- garnishment of wages or earnings, and
- garnishment of bank accounts at financial institutions.
Obtain a Judgment
The first step toward collecting a debt owed to you by another is obtaining a judgment against that person for the amount you are seeking. A “judgment” is a final decision by a court.
A judgment is obtained through a lawsuit. If the debtor does not respond to the complaint initiating the lawsuit by filing an answer, the creditor may be able to simply obtain a default judgment against the debtor.
A default judgment is as much a judgment as a judgment after a contested lawsuit. A default judgment merely means that the creditor won because the debtor failed to respond. If the debtor does respond to the complaint and there is a contested lawsuit, the creditor must win the lawsuit and obtain a judgment, or court order, in favor of the creditor against the debtor.
Once you have a judgment from a court for a certain amount owed, you can begin the process of collecting that amount.
Docket the Judgment
You must docket the judgment. The court administrator or clerk’s office for the court in which you received the judgment should be able to tell you what is needed to docket the judgment.
A “judgment docket” is a list of judicial orders of a particular court, recorded by the court’s clerk, and available for inspection by the public.
The judgment docket provides the ability for interested parties to learn of the existence of the judgment. Recording a judgment in a judgment docket is considered official notice to all parties of the existence of the judgment.
Cease Efforts After Payment or New Agreement
At any time the debtor satisfies, or pays the judgment, you are obviously no longer permitted to seek collection of that amount – you have already collected.
If you agree with the debtor to settle the case in some other way, you also are not permitted to seek collection in violation of that agreement.