How Do I Garnish a Bank Account in Texas if I Have an Unpaid Judgment?
Full Question:
Answer:
A writ of garnishment is an order granted to a third party (garnishee), to hold or attach the property of a defendant or judgment creditor. A garnishee can be a person or a corporation who is in possession of the property of a judgment creditor or a defendant.
The most common type of money that a writ of garnishment is used for is a bank account. If you know where the person you sued banks, you can go back to the clerk of the court and obtain a writ of garnishment to force the bank to turn over the money in the account to you. The losing party to a lawsuit who owes money to the winning party is called a judgment debtor. If the judgment isn't paid, the winning party, called the judgment creditor, may get an "Order for Examination of Judgment Debtor." This is a procedure used to find out where the judgment debtor works, keeps money, and what assets he or she possesses. The order for examination will be served on the debtor along with a subpoena to appear in court and often is accompanied with a request to bring documents related to wages, banks accounts, and other holdings. The judgment debtor must appear in court to answer questions by the creditor's lawyer. The judgment debtor must comply with the order by appearing in court or a warrant will be issued for their arrest.
For further discussion, please see:
http://www.fair-debt-collection.com/state-garnishment-laws-5.html#44
Please see the following TX statutes:
§ 63.008 CIV. PRAC. & REM. Financial Institution as Garnishee
Service of a writ of garnishment on a financial institution named as
the garnishee in the writ is governed by Section 59.008, Finance
Code.
§ 63.002 CIV. PRAC. & REM. Who May Issue
The clerk of a district or county court or a justice of the peace may
issue a writ of garnishment returnable to his court.
§ 59.008 FIN. Claims Against Customers of Financial Institutions
(a) A claim against a customer of a financial institution shall be
delivered or served as otherwise required or permitted by law at the
address designated as the address of the registered agent of the
financial institution in a registration filed with the secretary of state
pursuant to Section 201.102, with respect to an out-of-state financial
institution, or Section 201.103, with respect to a Texas financial
institution.
(b) If a financial institution files a registration statement with the
secretary of state pursuant to Section 201.102, with respect to an
out-of-state financial institution, or Section 201.103, with respect
to a Texas financial institution, a claim against a customer of the
financial institution is not effective as to the financial institution if
the claim is served or delivered to an address other than that designated
by the financial institution in the registration as the address of the
financial institution's registered agent.
(c) The customer bears the burden of preventing or limiting a financial
institution's compliance with or response to a claim subject to this
section by seeking an appropriate remedy, including a restraining order,
injunction, protective order, or other remedy, to prevent or suspend the
financial institution's response to a claim against the customer.
(d) A financial institution that does not file a registration with the
secretary of state pursuant to Section 201.102, with respect to an
out-of-state financial institution, or Section 201.103, with respect
to a Texas financial institution, is subject to service or delivery of
all claims against customers of the financial institution as otherwise
provided by law.
§ 63.001 CIV. PRAC. & REM. Grounds
A writ of garnishment is available if:
(1) an original attachment has been issued;
(2) a plaintiff sues for a debt and makes an affidavit stating that:
(A) the debt is just, due, and unpaid;
(B) within the plaintiff's knowledge, the defendant does not
possess property in Texas subject to execution sufficient to satisfy the
debt; and
(C) the garnishment is not sought to injure the defendant or the
garnishee; or
(3) a plaintiff has a valid, subsisting judgment and makes an
affidavit stating that, within the plaintiff's knowledge, the defendant
does not possess property in Texas subject to execution sufficient to
satisfy the judgment.
Please see the following TX Court Rules:
RULE 658. APPLICATION FOR WRIT OF GARNISHMENT AND ORDER
Either at the commencement of a suit or at any time during
its progress the plaintiff may file an application for a writ
of garnishment. Such application shall be supported by
affidavits of the plaintiff, his agent, his attorney, or
other person having knowledge of relevant facts. The
application shall comply with all statutory requirements and
shall state the grounds for issuing the writ and the specific
facts relied upon by the plaintiff to warrant the required
findings by the court. The writ shall not be quashed because
two or more grounds are stated conjunctively or disjunctively.
The application and any affidavits shall be made on personal
knowledge and shall set forth such facts as would be
admissible in evidence; provided that facts may be stated
based upon information and belief if the grounds of such
belief are specifically stated.
No writ shall issue before final judgment except upon
written order of the court after a hearing, which may be ex
parte. The court in its order granting the application shall
make specific findings of facts to support the statutory
grounds found to exist, and shall specify the maximum value
of property or indebtedness that may be garnished and the
amount of bond required of plaintiff. Such bond shall be in
an amount which, in the opinion of the court, shall
adequately compensate defendant in the event plaintiff fails
to prosecute his suit to effect, and pay all damages and
costs as shall be adjudged against him for wrongfully suing
out the writ of garnishment. The court shall further find in
its order the amount of bond required of defendant to
replevy, which, unless defendant exercises his option as
provided under Rule 664, shall be the amount of plaintiff's
claim, one year's accrual of interest if allowed by law on
the claim, and the estimated costs of court. The order may
direct the issuance of several writs at the same time, or in
succession, to be sent to different counties.
RULE 662. DELIVERY OF WRIT
The writ of garnishment shall be dated and tested as other
writs, and may be delivered to the sheriff or constable by
the officer who issued it, or he may deliver it to the
plaintiff, his agent or attorney, for that purpose.
RULE 663. EXECUTION AND RETURN OF WRIT
The sheriff or constable receiving the writ of garnishment
shall immediately proceed to execute the same by delivering a
copy thereof to the garnishee, and shall make return thereof
as of other citations.
RULE 663a. SERVICE OF WRIT ON DEFENDANT
The defendant shall be served in any manner prescribed for
service of citation or as provided in Rule 21a with a copy of
the writ of garnishment, the application, accompanying
affidavits and orders of the court as soon as practicable
following the service of the writ. There shall be prominently
displayed on the face of the copy of the writ served on the
defendant, in ten-point type and in a manner calculated to
advise a reasonably attentive person of its contents, the
following:
"To __________________, Defendant:
You are hereby notified that certain properties alleged to
be owned by you have been garnished. If you claim any rights
in such property, you are advised:
"YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY
FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN
POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION
TO DISSOLVE THIS WRIT."
RULE 677. COSTS
Where the garnishee is discharged upon his answer, the costs
of the proceeding, including a reasonable compensation to the
garnishee, shall be taxed against the plaintiff; where the
answer of the garnishee has not been controverted and the
garnishee is held thereon, such costs shall be taxed against
the defendant and included in the execution provided for in
this section; where the answer is contested, the costs shall
abide the issue of such contest.
