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Archive for the ‘Civil procedure’ Category

Tennessee Garnishment – Law and Procedure

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It is generally the case that a state’s legislative enactments, or statutes, establish the substantive rights and rules of judicial garnishment, but court rules set forth the procedures of garnishment. This is how Tennessee does it. To more fully understand the Tennessee statutory law of garnishment, found here, it’s necessary to consult the Tennessee Rules of Civil Procedure (TRCP) , and particularly TRCP Rule 69.05:

(1) Garnishee’s Duty Generally. A writ of garnishment served on a garnishee holding property of the judgment debtor requires the garnishee to answer the writ and make an accounting to the court. Property includes a judgment debtor’s realty, personalty, money, wages, corporate stock, choses in action (whether due or not), and court judgments.

(2) Service of Writ of Garnishment. The sheriff shall serve the garnishee with three copies of the writ of garnishment and one copy of the notice to judgment debtor.

(3) Garnishee’s Duty Upon Service. The garnishee by the next business day after service shall ascertain whether the garnishee holds property of the debtor. If so, the garnishee shall mail one copy of the writ of garnishment with the notice to the last known address of the judgment debtor. Where the garnishee is a financial institution, the balance in the judgment debtor’s accounts on the night of the service date is the amount subject to that garnishment writ.

Within ten days of service, the garnishee shall file a written answer with the court accounting for any property of the judgment debtor held by the garnishee.

Within thirty days of service, the garnishee shall file with the court any money or wages (minus statutory exemptions) otherwise payable to the judgment debtor. If the garnishee holds property other than money or wages, a judgment may be entered for that property and a writ of execution may issue against the garnishee.

(4) Failure of Garnishee to Respond. If the garnishee fails to timely answer or pay money into court, a conditional judgment may be entered against the garnishee and an order served requiring the garnishee to show cause why the judgment should not be made final. If the garnishee does not show sufficient cause within ten days of service of the order, the conditional judgment shall be made final and a writ of execution may issue against the garnishee for the entire judgment owed to the judgment creditor, plus costs.

It is also a good idea to check local court rules. A collection of Tennessee’s Local Rules of Practice can be found on TNCourts.gov, here. Also, looking at official Tennessee court forms can offer insight into how things work.

If you want to know how a Tennessee  garnishment really works in actual practice, there is no adequate substitute for an experienced Tennessee lawyer.

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Written by Tom Fox

March 2, 2014 at 7:00 am

Michigan Garnishment – Periodic Payments

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Legal research is a game of back and forth searching here and there. For example, MCL §600.4012(1) provides, in part, ” . . . . a writ of garnishment of periodic payments remains in effect for the period prescribed by the Michigan court rules.”

Michigan Garnishment LawThis, of course, requires looking to the Michigan Court Rules (MCR), which can be found here.

Searching  in Chapter Three of the MCR, relating to special proceedings, we find Rule 3.101, Garnishment After Judgment, in part (A)(4) “periodic payments” are defined to include,

” . . . . wages, salary, commissions, bonuses, and other income paid to the defendant during the period of the writ; land contract payments; rent; and other periodic debt or contract payments. Interest payments and other payments listed in MCL 600.4012(4)(a)-(d) are not periodic payments.”

(You are welcome to look up MCL 600.4012(4)(a)-(d) yourself to learn what else in not a periodic payment.)

MCR 3.101(B)(1)(a) goes on to say, basically,  that a garnishment of periodic payments (like a wage garnishment) continues until the debt is paid in full or 182 days have passed, whichever happens first.

There you have it. Mystery solved. Maybe. Just when you think you understand what’s going on, there is always a weird little twist or exception that pops up. Best practice requires reading all the Michigan appellate court opinions relating to this issue. Very frequently one can read a statute or a court rule and think it is understood, only later to discover the higher courts don’t see it that way at all.

See:

A Guide to Periodic Payment Garnishment – Michigan Legal Aid

A Guide to Garnishment of Periodic Payments – Michigan Courts (PDF)

Written by Tom Fox

March 1, 2014 at 9:52 am

Texas Non-garnishment Wage Garnishment for Child Support

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I’m not messing with Texas. Seriously, I’m not. It just so happens that I’m spending a fair amount of time these days researching the Texas laws relating to garnishment. In addition to pure judicial garnishment and pure administrative garnishment, child support judicial ‘wage garnishment’ is a separate procedural category.

There are, at least, three general categories of garnishment in Texas:

(1) Traditional judicial civil garnishment under Texas CP §63.001 to §63.008, for the collection of private, non-support, debts. Generally, the Texas Constitution (Article 16 Sec. 28) prohibits wage garnishment for these types of debts. Also, Tex. CP § 63.004 specifically exempts current wages from this type of garnishment:

“Except as otherwise provided by state or federal law, current wages for personal service are not subject to garnishment. The garnishee shall be discharged from the garnishment as to any debt to the defendant for current wages.”

(2) Child support wage garnishments may be either judicial or administrative. The rules applicable to judicial child support wage garnishments are contained within Texas Family Code §§ 5.158.001 to 5.158.507. This type of wage garnishment is called “income withholding” or “withholding from earnings,” but it is not called wage garnishment.

(3) Pure administrative wage garnishments. The clearest example of this type is and IRS wage levy for the collection of federal taxes. Administrative garnishments also include debt collection tools related to federal student loans, federally insured student loans (but not private non-insured student loans) and the collection of general debts to the federal government.

From a debtor’s point a view, the distinction between a wage garnishment, an income withholding or a wage levy seems insignificant. The net result is the same in each instance: Money is involuntarily deducted from a paycheck. Of course, the distinctions among the various different types of wage garnishment and non-garnishment wage ‘withholding’  or ‘levy’ is critical if there is a wish to challenge the process.

Written by Tom Fox

February 28, 2014 at 9:42 am

Rules for Legal Greenhorns – A Kentucky Case Caption

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Specific guidelines for Kentucky civil court paperwork:

  • Use standard letter size (8.5 x 11 inch) opaque, non-glossy, white paper;
  • Provide one inch margins on top, bottom  & right (suggested) and one and one-half inch margin on left side (required by CR 7.02(4));
  • Use 12 point, or larger, type size;
  • Generally use regular style type, but italics or underline for case names  and for emphasis;
  • Use double-space lines in the main body, except for indented quotations;
  • Print on one side of the paper only;
  • Staple multiple pages together;
  • Use black ink only, and;
  • Check you local rules of court for variations to these guidelines.

It must be easy for everyone involved to quickly identify which of the many thousands of pending cases your particular piece of paper belongs with, and the specific purpose your paper is intended to serve. All the necessary identifying information must go at the top of the first page. There are variations in how this essential information is arranged, but however it is presented, the human mind must be able to understand it in the blink of an eye. The single most important piece of information is the case number. It may also be called a ’cause number’, a ‘docket number’ or possibly something else depending upon local practice and habit. However, the case number is not all there is. Here is an eight point example of a properly formatted case caption:

Sample Kentucky civil case caption

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  1. At the very top is the name of the court in which the case is pending. If you have been sued, take this information from the summons and complaint that were served on you;
  2. The name of the county where the case is pending;
  3. The name of the plaintiff or plaintiffs. These are the folk doing the suing.
  4. Your name as defendant, who is being sued.
  5. “Pro se” means you don’t have a lawyer and you are representing yourself. This is not needed if you have a lawyer; but if you have a lawyer you you would not be devising your own case caption.
  6. The case, cause or docket number. Get it right.
  7. Who if filing this piece of paper. In this example it is you, the defendant.
  8. What is this piece of paper? In this example, it is an answer to a complaint.  There are many other types of paperwork, motions or pleadings.

NOTE: The sample caption shown above uses red to highlight the different important parts of the caption. In a real pleading, use black print only.

KRCP  Rule 10.01 provides:

“Every pleading shall have a caption setting forth the name of the court, the style of the action, the file number, and a designation as in Rule 7.01. In the complaint the style of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.”

Points 1 and 2 in my sample caption cover the complete “name of the court” in Rule 10.01.

The “style of the action” in Rule 10.01 means, basically, the names of the parties: Example:  John Jones, Plaintiff vs. Jimmy Smith, Defendant. This would be points 3, 4 and 5 in my sample caption.

The “file number” is the case number of point 6.

A“designation as in Rule 7.01″ mentioned in Rule 10.01 means  a “Complaint.” Answer to Complaint,” “Counterclaim” etc., or the type of pleading, which are points 7 and 8, above.

Written by Tom Fox

February 24, 2014 at 11:27 am

The Mystery of Motion Day – Kentucky Practice

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Occasionally judges and courts take action without being asked to do so, and there are several specific instances when law and practice require a court to act ‘on its own motion’. However, in the normal course of civil litigation, the litigants and their lawyers have the duty to move a case through its various stages to completion. Quite a bit of activity occurs outside the court house through communication, cooperation, negotiation and agreement between the lawyers representing the various parties. But, when disagreements arise or when the spirit of professional courtesy is lacking, the parties petition the court to make a decision.

In Kentucky practice, a litigant’s request to the court for permission, decision or compulsion is generally called a ‘motion’. There are dozens upon dozens of different types of motions that can be submitted to a court. Motions can be made before trial in writing and motions may be made orally in open court, on the record, during the course of trials and hearings. The more serious types of pre-trial motions;  such as motions to dismiss a case, motions for judgment on the pleadings and motions for summary judgment; are  assumed to be contested. For these types of motions the applicable rules of procedure and practice generally provide for each party to prepare written briefs with time to answer and further time to respond to the answer before the matter is submitted to the court for a ruling.

The lesser motions that come before a court are handled more routinely, while allowing for another party to fight the motion if doing so is in his or her interest. In Kentucky practice, these more routine motions are automatically docketed, or put upon a court’s schedule, for the next upcoming Motion Day.

Kentucky Rules of Civil Procedure (KRCP) Rule 78 – Motions Days; Submission of Motions – provides:

“(1) Each circuit and district court shall establish by rule regular motion days as required by statute, and a copy of the rules shall be certified to the Supreme Court as provided in SCR 1.040(3)(a).
“(2) To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and opposition.”

Kentucky has fifty-seven circuit court judicial districts and sixty district court judicial districts. Each of these one hundred seventeen judicial districts  adopt their own respective local rules of procedure on a wide variety of matters. Specifically, pursuant to  KRCP Rule 78, supra, there are one hundred seventeen local variations on Motion Day practice. I have yet to find the individual who has read and compared each of these various local Motion Day rules.

From the several set of local  rules I have examined, Motion Day practice appears to be fairly consistent across the Commonwealth. Generally, a set time on the same day every week is designated as ‘motion hour’ and the motions that were filed and served before the cut-off the prior week are called one by one in open court. If the party who made the motion is in the courtroom when the case is called, the judge considers the motion and either:

  • Grants the motion;
  • Denies the motion;
  • Takes the motion under advisement;
  • Sets the motion for a more complete hearing, or;
  • Punts the motion to the next motion day.

There are many ways the parties or attorneys can avoid the necessity of appearing in person in court on motion day. The non-moving party can simply agree to the motion without objection, for example. Or, the parties might agree that the motion be submitted to the court for decision upon written briefs and stipulated facts. The system works better with civil communication and cooperation among the litigants and the court. The main proviso is that all communications to the court must be in writing with copies served upon each of the other parties, or in open court and on the record.

Court, after all, is a very formal arena.

Remember to consult your local rules of practice. Kentucky Local Rules of Court collection

Written by Tom Fox

February 23, 2014 at 7:58 pm