South Carolina General Assembly
112th Session, 1997-1998

Bill 914


Indicates Matter Stricken
Indicates New Matter


                    Current Status

Bill Number:                    914
Type of Legislation:            General Bill GB
Introducing Body:               Senate
Introduced Date:                19980114
Primary Sponsor:                Gregory 
All Sponsors:                   Gregory 
Drafted Document Number:        gjk\20998sd.98
Residing Body:                  House
Current Committee:              Judiciary Committee 25 HJ
Date of Last Amendment:         19980415
Subject:                        Garnishment Act of 1998, Courts,
                                Minors, Child support, Consumer
                                Affairs, Torts, Judgments

History

Body    Date      Action Description                       Com     Leg Involved
______  ________  _______________________________________  _______ ____________

House   19980603  Recommitted to Committee                 25 HJ
House   19980528  Committee report: Favorable with         25 HJ
                  amendment
House   19980416  Introduced, read first time,             25 HJ
                  referred to Committee
Senate  19980415  Amended, read third time,
                  sent to House
Senate  19980402  Read second time, ordered to
                  third reading with notice of
                  general amendments
Senate  19980402  Committee amendment adopted
Senate  19980401  Committee report: Favorable with         11 SJ
                  amendment
Senate  19980114  Introduced, read first time,             11 SJ
                  referred to Committee


View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

COMMITTEE REPORT

May 28, 1998

S. 914

Introduced by Senator Gregory

S. Printed 5/28/98--H.

Read the first time April 16, 1998.

THE COMMITTEE ON JUDICIARY

To whom was referred a Bill (S. 914), to amend Title 15, Code of Laws of South Carolina, 1976, relating to civil remedies and procedures, etc., respectfully

REPORT:

That they have duly and carefully considered the same, and recommend that the same do pass with amendment:

Amend the bill, as and if amended, by striking SECTION 2.

Amend further, Section 15-42-20, as contained in SECTION 1, by striking subsection (A), as contained on page 1, lines 39 through 42, and page 2, lines 1 through 12, and inserting:

/ (A) Every person who has recovered judgment in any court against another person to recover a nonconsumer debt or a debt which resulted from a revolving account which is not a consumer credit transaction as defined in Section 37-1-301(11) or other consumer debt as defined in Section 37-1-301(10) 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, distribution of earnings, 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, must be construed in the manner provided in this section. The term 'debt' as used in this chapter shall mean a nonconsumer debtor or a debt which resulted from a revolving credit account which is not a consumer credit transaction as defined in Section 37-1-301(11). /

Amend further, Section 15-42-40, as contained in SECTION 1, by adding a subsection (G) at line 14 on page 4, as follows:

/ (G) The judgment creditor is required to give written notice to the entity through which garnishment is being effected when the debt has been paid off, file a satisfaction of the judgment, and forward any overpayment received to the individual from whom the debt was garnished within thirty days after the debt has been paid in full. Failure to do so within thirty days after receipt of a written demand for same by the debtor or the individual being garnished shall entitle the party requesting same to an award of reasonable legal fees and costs associated with forcing the creditor to comply plus damages not to exceed five hundred dollars. /

Renumber sections to conform.

Amend title to conform.

JAMES H. HARRISON, for Committee.

A BILL

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 1998", WHICH PROVIDES PROCEDURES THAT GRANT TO PERSONS WHO HAVE RECOVERED CERTAIN JUDGMENTS AGAINST ANOTHER PERSON A RIGHT TO A WRIT OF GARNISHMENT, SUBJECTING TO GARNISHMENT UP TO SPECIFIED LIMITATIONS INCOME, WAGES, INTEREST, RENTS, DIVIDENDS, CAPITAL GAINS, BONUSES, AND COMMISSIONS OF THE DEBTOR; AND TO REPEAL SECTION 37-5-104 RELATING TO THE PROHIBITION AGAINST GARNISHMENT FOR DEBTS ARISING FROM A CONSUMER CREDIT SALE.

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:

"CHAPTER 42

South Carolina Garnishment Act

Section 15-42-10. This chapter may be cited as the 'South Carolina Garnishment Act of 1998'.

Section 15-42-20. (A) Every person who has recovered judgment in any court against another person to recover a nonconsumer debt or a debt which resulted from a revolving account which is not a consumer credit transaction as defined in Section 37-1-301(11) or other consumer debt as defined in Section 37-1-301(10) 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, dividend 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, must be construed in the manner provided in this section. The term 'debt' as used in this chapter shall mean a nonconsumer debtor or a debt which resulted from a revolving credit account which is not a consumer credit transaction as defined in Section 37-1-301(11).

(B) Child support payments are not income subject to garnishment under this chapter. However, garnishment of income for required child support payments otherwise provided for by the laws of this State or under federal law continues in full force and effect and is not affected by the provisions of this chapter.

(C) A writ of garnishment must not be issued to subject to an obligation to garnish any person paying income to the debtor as a tenant, client, or customer of the debtor.

Section 15-42-30. (A) After judgment has been obtained against a defendant, the judgment creditor shall serve notice of intent to apply for a writ of garnishment on the debtor. The judgment creditor also shall serve with the notice an affidavit of search stating the amount of the judgment and that the plaintiff has searched for and was unable to find property on which a levy may be made sufficient to satisfy the judgment. The affidavit of search may be filed and the writ issued either before or after the return of execution. The notice shall give the judgment debtor thirty days to respond, which response must be in writing and served upon the judgment creditor.

(B) The notice must be in writing and conspicuously state: the name, address, and telephone number of the judgment creditor to whom the garnished payments must be made, a brief identification of the debt and a statement that if the debt is not paid, the judgment creditor may apply for a writ of garnishment, the debtor's right to cure the debt, and the amount of payment and date by which payment must be made to cure the debt before garnishment. A notice shall be in substantially the following form:

'

(name, address, and telephone number of judgment creditor)

(name, address, and telephone number of judgment debtor)

(amount of judgment now due)

(description of judgment)

(last date for payment before garnishment applied for)'

Section 15-42-40. (A) Thirty days after service of the notice, the judgment creditor may file with the circuit court the original notice, affidavit of search, affidavit of service, any response, and a motion for writ of garnishment together with a filing fee of twenty-five dollars.

If the judgment debtor serves an answer to the notice, the court shall set the motion for hearing and notify all parties of the hearing.

(B) If the judgment debtor fails to answer as required, the judgment creditor shall file with the circuit court, the original notice, affidavit of search, affidavit of service, affidavit of default, and a motion for writ of garnishment. If the judgment debtor fails to answer, the court shall issue a writ of garnishment against the judgment debtor, for the amount of the judgment.

(C) Upon receipt of the writ of garnishment, the judgment creditor shall forward a copy to the employer or other garnishee of the judgment debtor, which writ shall provide for the periodic payments of a stated portion of the salary or wages of the judgment debtor as provided in Section 15-42-50. The judgment creditor also shall forward to the employer or other garnishee instructions for the manner in which the remittance by the employer or other garnishee to the judgment creditor must be made, the content of which must be prescribed by court rule.

(D) Until the judgment is satisfied or until otherwise provided by court order, the court shall allow the judgment debtor's employer and subsequent employers or other garnishee to collect up to five dollars against the salary or wages of the judgment debtor to reimburse the employer or other garnishee for administrative costs for the first deduction from the judgment debtor's salary or wages and up to one dollar for each deduction thereafter.

(E) The employer or other garnishee shall remit the funds withheld to the judgment creditor within fifteen days after withholding. An employer or other garnishee who wilfully violates the requirements of this chapter in regard to the garnishment and remittance of an employee's earnings or other garnishable income to a judgment creditor is subject to a civil penalty of two hundred fifty dollars for each violation to be imposed at the discretion of the court. The creditor has a right of action against the employer for any garnished wages not remitted, to include the recovery of reasonable attorneys' fees and costs.

(F) The employee must be fully credited with payment toward the debt in the amount garnished even if those funds are not remitted to the creditor by the employer or other garnishee.

Section 15-42-50. (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 amount required by law to be withheld.

(2) 'Earnings' means compensation paid or payable for personal service, whether denominated as wages, salary, commission, bonus, or otherwise.

(B) 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 twenty-five percent of his disposable earnings for that week.

(C) The limitation of 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 administrative costs as detailed in Section 15-42-40(D) count when computing the maximum amount of disposable earnings subject to garnishment.

Section 15-42-60. No employer may discharge or terminate 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. An employee discharged or terminated in violation of this section may bring a civil action for wrongful discharge or termination.

Section 15-42-70. Funds or benefits from a pension or retirement program or funds or benefits from an individual retirement account are 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, are exempt from the process of garnishment only to the extent provided in Section 15-42-50 for other disposable earnings, unless a greater exemption is otherwise provided by law.

Section 15-42-80. 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 15-42-90. This chapter does not apply to garnishment for income tax purposes or other purposes which are otherwise provided for by the laws of this State.

Section 15-42-100. This chapter does not apply to a first mortgage on a residence which qualifies as a person's legal residence under Section 12-43-220(c)."

SECTION 2. (A)(1) If any payment required to be made on or before a prescribed date is, after such date, delivered by the United States Postal Service to the payee, such payment shall be deemed received by the payee on the date of the United States postmark stamped on the envelope or other cover in which such payment is mailed.

(2) Subsection (A)(1) shall only apply with respect to a payment:

(a) which is a payment on a consumer credit transaction arising under Title 37;

(b) which is a payment on a lender credit card or similar arrangement;

(c) which is a payment on a transaction arising under Chapter 29 of Title 34; or

(d) which is a payment on an agreement which is secured by a first lien or junior lien on the consumer's principle dwelling or primary residence.

(3) Subsection (A)(1) shall not apply with respect to any payment:

(a) which is required, by law, regulation, or contract, to be delivered by any other method other than by mail; or

(b) which is subject to any other provision of South Carolina law or federal law specifying how a postmark date shall be used in determining the date on which such payment shall be deemed to have been delivered or made.

(4) Subsection (A)(1) shall apply only if:

(a) the postmark date falls on or before the prescribed date for making the payment; and

(b) the payment was, on or before such date, deposited in the mail in the United States in an envelope or under other appropriate cover, postage prepaid, properly addressed to the payee.

(5) Subsection (A)(1) shall not apply in the case of a postmark not made by the Postal Service.

(6) For purposes of this section, the term "payee", as used with respect to a payment, includes any person duly authorized to receive such payment.

(B) This section shall apply with respect to loans, accounts, credit cards, and agreements transacted, opened, entered into, renewed, re-issued, or refinanced on or after the effective date of this act. This section shall apply with respect to any mailing postmarked after the end of the ninety-day period beginning on the effective date of this act.

SECTION 3. This act takes effect upon approval by the Governor.

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