Current Status Bill Number:
1184Type of Legislation: General Bill GBIntroducing Body: SenateIntroduced Date: 19960227Primary Sponsor: LeventisAll Sponsors: LeventisDrafted Document Number: gjk\22366sd.96Residing Body: SenateCurrent Committee: Judiciary Committee 11 SJSubject: Garnishment Act of 1996
Body Date Action Description Com Leg Involved ______ ________ _______________________________________ _______ ____________ Senate 19960227 Introduced, read first time, 11 SJ referred to CommitteeView additional legislative information at the LPITS web site.
TO AMEND TITLE 15, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CIVIL REMEDIES AND PROCEDURES, BY ADDING CHAPTER 42 SO AS TO ENACT THE "SOUTH CAROLINA GARNISHMENT ACT OF 1996" AND TO ESTABLISH THE PROCEDURES BY WHICH AND CONDITIONS UNDER WHICH PREJUDGMENT AND POST JUDGMENT WRITS OF GARNISHMENT AGAINST THE INCOME OF A DEBTOR MAY BE ISSUED.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 15 of the 1976 Code is amended by adding:
Section 15-42-10. This chapter may be cited as the `South Carolina Garnishment Act of 1996'.
Section 15-42-20. Every person who has sued to recover a debt or has recovered judgment in any court against another person has a right to a writ of garnishment, in the manner provided in this chapter, to satisfy the judgment he has obtained by subjecting to garnishment income, wages, interest, rents, capital gains, dividends, bonuses, and commissions of the judgment debtor. Except for the above types of income, no other types of personal property of the debtor are subject to garnishment, and the term `property' of the debtor or any other similar term, as used in this chapter in regard to garnishment, shall be construed in the manner provided in this section.
Section 15-42-30. (A) No writ of garnishment under this chapter may issue in any action sounding in tort but only from actions arising under contract.
(B) If the amount of the judgment or the amount in controversy if the proceedings have not yet resulted in a judgment are five thousand dollars or less, jurisdiction of the garnishment action is in the magistrate's court. Otherwise, jurisdiction over such garnishment actions is in the circuit court.
Section 15-42-40. After judgment has been obtained against a defendant, the plaintiff may apply for a writ of garnishment. Before the writ of garnishment is issued, the plaintiff also shall file a declaration stating the amount of the judgment and that the plaintiff does not believe that defendant has in his possession property on which a levy can be made sufficient to satisfy the judgment. The declaration may be filed and the writ issued either before or after the return of execution.
Section 15-42-50. Before judgment has been obtained by the plaintiff against the defendant:
(1) A writ of garnishment also may be issued by the court.
(2) To obtain issuance of the writ before judgment, the plaintiff shall file in the court where the action is pending a verified affidavit alleging by specific facts the nature of the cause of action; the amount of the debt and that the debt for which the plaintiff sues is just, due, and unpaid; that the garnishment is not used to injure either the defendant or the garnishee; and that the plaintiff believes that the defendant will not have in his possession, after execution is issued, tangible or intangible property in this State and in the county in which the action is pending on which a levy can be made sufficient to satisfy the plaintiff's claim. The writ of garnishment shall set forth a notice to the defendant of his right to an immediate hearing for dissolution of the writ pursuant to Section 15-42-160. Upon issuance of the writ of garnishment, the court shall provide a copy of the writ to the defendant and to any garnishee.
(3) No writ of garnishment before judgment may be issued until the plaintiff gives a bond with a surety to be approved by the court payable to the defendant in at least double the amount of the debt demanded, conditioned to pay all costs, damages, and attorney's fees that the defendant sustains in consequence of plaintiff's improper writ of garnishment.
Section 15-42-60. Notwithstanding any other provision of this chapter, if salary or wages are to be garnished to satisfy a judgment in the manner permitted by Section 15-42-70, the court shall issue a continuing writ of garnishment to the judgment debtor's employer which provides for the periodic payment of a stated portion of the salary or wages of the judgment debtor as the salary or wages become due until the judgment is satisfied or until otherwise provided by court order. The court shall allow the judgment debtor's employer to collect up to five dollars against the salary or wages of the judgment debtor to reimburse the employer for administrative costs for the first deduction from the judgment debtor's salary or wages and up to one dollar for each deduction thereafter.
Section 15-42-70. (A) As used in this chapter:
(1) `Disposable earnings' means that part of the earnings of an individual remaining after the deduction from those earnings of the amounts required by law to be withheld.
(2) `Earnings' means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments pursuant to a pension or retirement program.
(B) (1) Notwithstanding subsection (A) of this section, the maximum part of the aggregate disposable earnings of an individual for any work week which is subject to garnishment may not exceed the lesser of:
(a) twenty-five percent of his disposable earnings for that week; or
(b) the amount by which his disposable earnings for that week exceed thirty times the federal minimum hourly wage prescribed by Federal Fair Labor Standards Act of 1938 in effect at the time the earnings are payable.
(2) In case of earnings for a period other than a week, a multiple of the federal minimum hourly wage equivalent in effect to that set forth in subitem (B)(1)(b) of this subsection shall be used.
(C) The limitation on garnishment set forth in subsection (B) shall apply although the garnishee may receive a writ of garnishment in more than one garnishment case naming the same defendant. No garnishee shall withhold from the disposable earnings of the defendant any sum greater than the amount prescribed by subsection (B), as applicable, regardless of the number of writs.
(D) The provisions of this section do not prevent other types of income enumerated in Section 15-42-20 but not considered earnings under this section from being subject to garnishment without limitation.
Section 15-42-80. No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment, even though more than one writ of garnishment may be served upon the employer with respect to the indebtedness.
Section 15-42-90. (A) Funds or benefits from a pension or retirement program or funds or benefits from an individual retirement account shall be exempt from the process of garnishment until paid or otherwise transferred to a member or beneficiary of the program. The funds or benefits, when paid or otherwise transferred to the member or beneficiary, shall be exempt from the process of garnishment only to the extent provided in Section 15-42-70 for other disposable earnings, unless a greater exemption is otherwise provided by law.
(B) Nothing in this section shall prohibit the attachment of welfare benefits as defined in 29 U.S.C. Section 1002(1) in the control of an administrator or trustee.
Section 15-42-100. The writ of garnishment shall also be served on any appropriate garnishee who shall answer same.
Section 15-42-110. Within thirty days after service of the garnishee's answer on the plaintiff if no reply was served, within thirty days after service of the plaintiff's reply to the garnishee's answer, or within thirty days after the time period for the garnishee's answer has expired if the garnishee did not answer, the plaintiff shall serve on the defendant the following documents: a copy of the writ, a copy of the answer, a copy of the reply, if any, a notice, and a certificate of service. The notice must advise the defendant that he must move to dissolve the writ within the time period set forth in Section 15-42-160 or be defaulted and that he may have exemptions from the garnishment which must be asserted as a defense. The plaintiff shall serve these documents on the defendant at his last known address and any other address disclosed by the garnishee's answer. The plaintiff shall file in the proceeding a certificate of this service.
Section 15-42-120. (A) The garnishee shall report in its answer and retain, subject to disposition as provided in this chapter, any money, deposit, or account of the debtor relating to his earnings or income in the possession or control of the garnishee.
(B) In any case where a garnishee in good faith is in doubt as to whether any money, deposit, or account of the debtor is required by law to be included in the garnishee's answer or retained by it, the garnishee may include and retain the same, subject to disposition as provided in this chapter, and in that case the garnishee is not liable for so doing to the defendant or to any other person claiming the same or any interest therein or claiming to have sustained damage on account thereof.
Section 15-42-130. When any garnishee answers and plaintiff is not satisfied with the answer, he shall serve a reply within thirty days thereafter denying the allegations of the answer as he desires.
Section 15-42-140. (A) Upon the garnishee answering without a reply or upon the plaintiff's reply to the garnishee's answer, the garnishee may apply for an order dismissing it from further liability under the writ if the garnishee has no earnings or income of the defendant in his control and anticipates receiving or accumulating no such earnings or income in the future.
(B) If the garnishee fails to answer as required, the garnishee is in default, and a judgment may be entered against the garnishee for the amount of plaintiff's claim with interest and costs. No judgment against a garnishee may be entered before the entry of, or in excess of, the final judgment against the defendant with interest and costs. If the claim of the plaintiff is dismissed or judgment is entered against him, the default against garnishee must be vacated.
Section 15-42-150. The garnishee may pay any money, deposit, or account of the debtor relating to his earnings or income to the court. In this event if no continuing withholding of the defendant's earnings or income is required, or if garnishee prevails in the action and after proper disposition of any property disclosed by his answer, the court shall discharge him from further liability under the writ.
Section 15-42-160. (A) The defendant, by motion, may obtain the dissolution of a writ of garnishment, unless the plaintiff proves the grounds upon which the writ was issued and unless, in the case of a prejudgment writ, there is a reasonable probability that the final judgment in the underlying action will be rendered in his favor. The court shall set the motion for an immediate hearing. If a prejudgment writ is dissolved, the action then must proceed as if no writ had been issued.
(B) The defendant and any other person having an ownership interest in the property, as disclosed by the garnishee's answer, may file and serve a motion to dissolve the garnishment within thirty days after the date indicated in the certificate of service on the defendant of the plaintiff's notice required by Section 15-42-110.
Section 15-42-170. On demand of any party to the action, a jury must be impaneled to try the issues.
Section 15-42-180. (A) If the judgment is for defendant in the garnishment action, plaintiff shall pay all costs which have accrued in consequence of the writ of garnishment action and any money brought into the court thereby inures to the benefit of defendant as if judgment had been rendered in his favor.
(B) If plaintiff dismisses his action or has a judgment against him on the action, any judgment against a garnishee becomes a nullity and the garnishee may be awarded costs against the plaintiff.
Section 15-42-190. At any time before the entry of judgment, a defendant whose money, deposits, or accounts has been garnisheed may secure its release by giving a bond with surety to be approved by the court in at least double the amount claimed in the complaint with interest and costs, or if the value of the money, deposits, or accounts garnisheed is less than this amount, then in double the value, conditioned to pay any judgment recovered against him in the action with interest and costs, or so much thereof as shall equal the value. On the approval of the bond, the court shall discharge the garnishment and release the money, deposits, or accounts. If garnishee admits a liability to the defendant for money, deposits, or accounts relating to his earnings in excess of a sum sufficient to satisfy plaintiff's claim, on motion of defendant and notice to plaintiff, the court shall release garnishee from responsibility to plaintiff for any debt to defendant except in a sum deemed by the court sufficient to satisfy plaintiff's claim with interest and costs.
Section 15-42-200. The remedy provided by this chapter is not exclusive but is in addition to any other collection procedures provided by the laws of this State in effect at the time this chapter takes effect and is optional with the judgment creditor.
Section 15-42-210. This chapter does not apply to garnishment for income tax purposes or garnishment for child support purposes, which are otherwise provided for by the laws of this State."
SECTION 2. This act takes effect upon approval by the Governor.