What is a Prejudgment Writ of Garnishment?

When you win a case, and try to collect your judgment, among the other tools available to you to collect your judgment is what is known as a writ of garnishment. This generally means that you can take the debtor’s property, or the debtor’s wages, both of which may be in possession of a third party, subject to certain exemptions, to satisfy the judgment.

But all of those remedies and collection methods are after a judgment is entered, and thus, the money is owed by the debtor. But there is actually a method where you can have a writ issued on the debtor’s assets before a judgment is even entered.

The Prejudgment Writ

This sounds counterintuitive—how can you hold, seize, freeze, or collect any of someone’s assets, money or property, when there is no judgment, and therefore, they don’t officially owe anything to you?

Although it does sound counterintuitive, it is in fact possible, albeit in limited circumstances.

A prejudgment writ of garnishment is for circumstances where you know a Defendant has assets or property, but there is a bona fide concern that the debtor or a third party with the debtor’s property, may not have that property, if and when a judgment is ultimately entered. Thus, you would ask the court to issue the writ in order to freeze or protect the debtor’s property or assets until the case is resolved.

You can also issue a writ against a third party—that is, where someone else may have the Defendant’s property, money or assets, and you are concerned that the third party may use, dispose of, or hide the Defendant’s assets.

This means that you could be served with a prejudgment writ even if you aren’t a party to any lawsuit, simply because you may be holding or have in your possession any of the Defendant’s property.

Affidavit and Bond Requirements

To get a prejudgment writ of garnishment, you must show the court through a sworn affidavit that there is an unpaid debt and that the Defendant will not have assets or property needed to satisfy the judgment in the event that it is entered.

Getting a prejudgment writ has another hurdle—you, as the party asking for the writ, must post a bond twice the amount of the value of the assets or property that are being seized or held pursuant to the writ. You also will have to agree to pay any damages that the Defendant or the party to whom the writ is issued may suffer as a result of a wrongful writ (for example, should you ultimately lose the case, and thus, not be entitled to the property subject to the writ).

For third parties served with a writ, if they disagree with the Plaintiff’s right to the writ, they can object, so long as they do so within 20 days. The prejudgment debtor will also be notified of the objection to the writ.

Getting a judgment is only part of winning your case. Let us help you from start to finish with your commercial litigation lawsuit. Let the West Palm Beach commercial litigation lawyers at Pike & Lustig help you today.

Sources:

leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0000-0099/0076/0076.html

casetext.com/statute/florida-statutes/title-vi-civil-practice-and-procedure/chapter-77-garnishment/section-77031-issuance-of-writ-before-judgment/analysis?citingPage=1&sort=relevance