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Garnishment

Garnishment is a legal process wherein a creditor requests that a debtor's employer (or anyone owing a payment to the debtor) withhold a portion of the debtor's wages and pay the money to the creditor. It is a means by which creditors can collect payment before the wages are paid to the debtor and thereby reduce the risk of not being paid. This web page briefly introduces garnishment, including limits on the amount that can be garnished, and a prohibition against an employer discharging (firing) an employee because the debtor's wages are being garnished.

When garnishment is available

  • After a court has entered judgment for a creditor seeking to recover money, a garnishee summons may be issued against any third person (that is, the garnishee), such as the debtor's employer (N.D.C.C. 32-09.1-06).
  • A garnishee summons may be issued against any person, any public corporation, the United States, or the state of North Dakota indebted to, possessing, or controlling any property belonging to the debtor.
  • A garnishment action is the exclusive procedure to execute on earnings of a debtor while those earnings are held by the employer (N.D.C.C. 32-09.1-02).

Consequence of failing to comply with garnishment summons

If a garnishee who has been served a garnishee summons willfully fails to fulfill the obligations of the garnishment, the court may hold the garnishee liable for the amount owed the creditor (not to exceed the amount of creditor's judgment against the debtor, or 110% of the amount which remains unpaid, whichever is smaller) (N.D.C.C. §32-09.1-14 and -15). This potential liability is intended to motivate garnishees to fulfill the legal obligations of a garnishment summons.

The remainder of the page introduces the garnishment process.

Notice to Debtor

At least ten days before the issuance of a garnishee summons against the debtor's wages, the creditor must notify the debtor that a garnishee summons may be issued. Failure to notify the debtor renders any subsequent garnishment void (N.D.C.C. 32-09.1-04). This notice gives the debtor an opportunity to pay the debt before any wages are garnished and thereby eliminate the complexity of involving the debtor's employer.  It also provides the debtor an opportunity to help determine the amount of wages that can be garnished.

Summons to Garnishee

A garnishee is informed of the garnishment by service of a garnishee summons.

  • The garnishee summons must include the debtor's full name, place of residence, and the amount of the judgment which remains unpaid (N.D.C.C. 32-09.1-07).
  • The garnishee summons also must state that the garnishee is required to disclose to the creditor, in writing within 20 days after service of the garnishee summons, the amount the garnishee owes the debtor (such as the amount of wages the employer/garnishee owes the employee/debtor), and the amount of the debtor's property that the garnishee possesses or controls (N.D.C.C. 32-09.1-07). This informs the creditor of how much can be collected from the employer/garnishee.
    • The maximum amount the garnishee needs to disclose is 110% of the amount of the unpaid judgment (N.D.C.C. §32-09.1-07). The creditor is entitled to no more than the unpaid judgment, and thus is not entitled to know about any more than this amount from the garnishee.
  • The garnishee summons must state that the garnishee must retain the debtor's property or money in the garnishee's possession until the creditor causes a writ of execution to be served upon the garnishee or until the debtor authorizes the garnishee to transfer the property to the creditor. The summons must also state that the garnishee must release all retained property and money to the debtor and will be discharged/relieved of all liability on the garnishee summons at the end of 1) 360 days after the service of the summons, or 2) a longer time agreed to in writing by the creditor and debtor, or 3) a longer time ordered by the court (N.D.C.C. 32-09.1-07).
  • The garnishee summons must state that no employer may discharge any employee because the employee's earnings are subject to garnishment (N.D.C.C. 32-09.1-07).
  • The garnishee summons must state that any assignment of wages made by the debtor within 10 days before the notice of the garnishment is void (N.D.C.C. 32-09.1-07).
  • The garnishee summons must state the date of the entry of judgment against the debtor.
  • The garnishee summons must state that the debtor shall provide to the garnishee within 10 days after receipt of the garnishee summons a list of the dependent family members who reside with the debtor and their social security numbers to reduce the maximum amount subject to garnishment. The garnishee summons must state that failure of the debtor to provide a list to the garnishee within 10 days after receipt of the garnishee summons is conclusive that the debtor claims no family members (N.D.C.C. 32-09.1-07).

Garnishee's Obligations

  • The garnishee shall provide the creditor written answers to the questions in the garnishment disclosure form and to any written interrogatories. The garnishee must disclose to the creditor:

    1. The amount of disposable earnings earned or to be earned within the debtor's pay periods which may be subject to garnishment and all of the garnishee's indebtedness to the debtor.

    2. Whether the garnishee held, at the time, the title or possession of or any interest in any personal property or any instruments or papers relating to any property belonging to the debtor or in which the debtor is interested.

    3. If the garnishee claims any setoff, defense, claim or lien to disposable earnings, indebtedness, or property, the garnishee shall disclose the amount and the facts.

    4. Whether the debtor claims any exemption from execution or any other objection, known to the garnishee or the debtor, against the right of the creditor to use the property held by the garnishee to pay the debtor's obligation.

    5. If other persons make claims to any disposable earnings, debt, or property of the debtor, the garnishee shall disclose the names and addresses of the other claimants and, so far as known, the nature of their claims.

  • The garnishee need not disclose more than 110% of the amount of the creditor's judgment which remains unpaid, after subtracting the total of setoffs, defenses, exemptions, ownerships, or other interests (N.D.C.C. §32-09.1-09).
  • Garnishee shall retain the defendant's nonexempt property, money, and effects in garnishee's possession until a writ of execution is served, until the debtor authorizes release to the creditor, or until the expiration of 360 days from the date of service of this summons upon the garnishee (N.D.C.C. 32-09.1-07).
  • When a garnishee possesses property of the debtor other than an indebtedness, the garnishee shall deliver the property to the officer holding execution, and the property shall be sold and the proceeds accounted for in the same manner as if it had been taken on execution against the debtor. (N.D.C.C. 32-09.1-15).
  • No employer may discharge an employee because earnings have been subjected to garnishment. If an employer discharges an employee in violation of this section, the employee may within 90 days of discharge bring a civil action for recovery of twice the wages lost as a result of the violation and for an order requiring reinstatement (N.D.C.C. 32-09.1-18).

Amount of garnishment

To protect the debtor from having all the wages garnished (and thereby leaving the debtor without a means of support), the state legislature has imposed a limit on how much can be garnished.

  • The maximum amount of disposable earnings of an individual for any workweek which is subject to garnishment may not exceed the lesser of:

    a. Twenty-five percent of disposable earnings for that week.

    b. The amount by which disposable earnings for that week exceed forty times the federal minimum hourly wage( N.D.C.C. 32-09.1-03).

  • The maximum amount subject to garnishment must be reduced by $20 for each dependent family member residing with the garnishment debtor (N.D.C.C. 32-09.1-03). Within 10 days after receipt of the garnishment summons, the debtor shall provide to the employer a verified list of the names and social security numbers, if any, of the dependents who reside with the debtor. If the debtor fails to provide the list, it is conclusively presumed that the garnishment debtor claims no dependents (N.D.C.C. 32-09.1-03).

Termination of garnishment

A garnishee summons lapses and the garnishee is discharged of any liability upon the expiration of 1) 360 days after the service of the summons, or 2) a longer period of time agreed to in writing by the creditor and debtor, or 3) a longer period of time ordered by the court. Immediately upon the lapse of the garnishee summons, all earnings, money, property, and effects that the garnishee has been retaining pursuant to the garnishment must be returned to the debtor if the debtor is otherwise legally entitled to them (N.D.C.C. 32-09.1-20).

Example

Also see Detroit Diesel Allison v. Heinze, 434 N.W.2d 352 (N.D. 1989).

"Section 32-09.1-06, N.D.C.C., provides that, at any time after judgment, a judgment creditor (plaintiff) may issue a garnishment summons against any third person, designated as a garnishee, for any indebtedness by the garnishee to a judgment debtor (defendant).  The garnishment summons must state that "the garnishee must retain property or money in the garnishee's possession pursuant to this chapter until the plaintiff causes a writ of execution to be served upon the garnishee or until the defendant authorizes release to the plaintiff," and "that after the expiration of the period of ... [(360) days] from the date of service of the garnishee summons, the garnishee must release all retained property and money to the defendant and is discharged and relieved of all liability thereon." Section 32-09.1-07, N.D.C.C. After service of the garnishment summons, the garnishee has twenty days to serve a written disclosure, under oath, of indebtedness to the defendant. N.D.C.C. 32-09.1-07, 32-09.1-09. Section 32-09.1-15, N.D.C.C., authorizes a judgment against the garnishee for the amount due the defendant, or so much as may be necessary to satisfy the plaintiff's judgment against the defendant. Section 32-09.1-20, N.D.C.C., states that "[a] garnishee summons lapses and the garnishee is discharged of any liability upon the expiration of [360] days after the service of the summons, or a longer period of time either agreed to in writing by the plaintiff and the defendant or ordered by the court."

 

Last updated July 26, 2006

   
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July 26, 2006