Categories: Asset Protection,

Once a judgment is obtained against an individual or corporation, the plaintiff or creditor asks the court for a writ of garnishment. When requesting the writ, the plaintiff must know to whom the writ will be served (e.g., a company, bank, and/or organization). Guesswork or assumptions won’t cut it. That’s because a writ is a piece of paper that says, specifically and directly, “If you have any money of Dr. Y’s, you must hold it until the court decides what to do with it.” And so the first thing a creditor must do is locate Dr. Y’s assets. If the assets cannot be found, the writ cannot be served, and the garnishment process will stop dead in its tracks.

If a judge or clerk is available, creditors may be able to get a writ on the spot. Or, depending on a court’s caseload, creditors may have to wait days. Processservice (the actually serving of the writ) may also take several days. Accordingly, there may be a delay between the issuance of a writ and its actual service. Within this gap, assets remain unfrozen and can be saved.

Say, for example, during a late-afternoon deposition, a physician reveals that he or she has an account at First National Bank. The very next morning, the physician closes the First National account and opens a new one at a different bank. In this case, the creditor might well serve the wrong bank and come up empty-handed. In essence, the physician will have slowed down the creditor. This delay is likely only temporary, however; but it can provide an invaluable window of opportunity.

Although it is unrequired, it’s a good practice for collection attorneys to include in the writ the debtor’s Social Security number and the number of the accounts that are to be frozen. This step increases the probability that the bank will process the writ properly. Larger banks have entire departments devoted to processing these garnishments; the process itself is fairly quick. Again, however, a writ can only be served on a garnishee (e.g., a bank in possession of the debtor’s funds—physical possession, that is). If a garnishee does not physically possess a debtor’s funds, it cannot be required to withhold them.

By: Mark Rosen

Lubell & Rosen, Attorneys At Law