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13.5.1 Introduction

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  3. Chapter 13 Enforcement of Judgments: General Principles, Constitutional Issues
  4. 13.5 Due Process Protections from Garnishment or Execution on Exempt Property
  5. 13.5.1 Introduction

13.5.1 Introduction

Garnishment is a frequently used debt collection technique in which the collector seizes money someone owes to the debtor. For example, a creditor may seize the debtor’s wages directly from the employer or seize the debtor’s bank account directly from the bank. Creditors can also proceed against property that is in the debtor’s possession, such as a car or household goods, by obtaining an order for it to be seized and sold.

Until 1969, collectors often used these techniques even before obtaining judgments on the underlying debts. In 1969, the Supreme Court struck down a state prejudgment wage garnishment statute as unconstitutional on its face.242 The practical result is that garnishments are generally used today only to enforce postjudgment debts. Some states allow ex parte prejudgment property attachments, but these statutes have generally been held unconstitutional unless they are limited to exigent circumstances and include substantial procedural safeguards.243

As for postjudgment garnishment and execution, the major due process concern is to allow debtors the opportunity to assert that certain of their assets are exempt from execution and thus may not be taken. A non-debtor also has due process rights when a creditor seeks to execute upon property in which the non-debtor has an interest.244

In general, the due process clause requires notice of exemptions and the opportunity for a hearing on exemptions. It is also a due process violation to increase the judgment amount or the amount listed on a writ of execution without giving the debtor notice and an opportunity to be heard.245 However, violation of a state law protection does not deprive a debtor of due process as long as the debtor is afforded constitutionally adequate notice and an opportunity to be heard.246

The subsections that follow focus on the application of these constitutional protections to garnishment and execution. Remedies for due process violations are discussed in more detail in other treatises in this series.247

Footnotes

  • 242 Sniadach v. Family Fin. Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969).

  • 243 Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991) (Connecticut statute allowing ex parte prejudgment attachment of realty in absence of exigent circumstances and without bond is unconstitutional); In re Foust, 310 F.3d 849 (5th Cir. 2002) (construing Mississippi prejudgment replevin statute to save its constitutionality; pre-seizure hearing required “where feasible”; denial of due process here, because complaint was “skeletal” and no showing that hearing not feasible); McLaughlin v. Weathers, 170 F.3d 577 (6th Cir. 1999) (Tennessee prejudgment attachment statute not unconstitutional on its face when attachment available only under “specified exigent circumstances” and procedure was available to challenge issuance of writ); Tri-State Dev. Ltd. v. Johnston, 160 F.3d 528 (9th Cir. 1998) (Washington’s prejudgment attachment statute was unconstitutional on its face when attachment could be obtained ex parte without showing of exigent circumstances); United States v. Stabl, Inc., 2018 WL 6068424 (D. Neb. Nov. 19, 2018) (prejudgment garnishment procedure is constitutionally adequate; requires showing of probable validity of debt and exigent circumstances; shown here, but garnishment denied because United States had adequate alternative means of protecting itself); Puerto Rican Am. Ins. v. Burgos-Diaz, 2005 WL 1643299 (D. P.R. June 30, 2005) (Puerto Rico’s prejudgment remedy statute satisfies Doehr criteria, if construed to require either “extraordinary circumstances” or a prior interest in the subject property, and a likelihood of success on the merits); Shawmut Bank v. Costello, 643 A.2d 194 (R.I. 1994) (prejudgment remedy statute unconstitutional when ex parte writ issued with no showing of exigent circumstances and no requirement that creditor post bond); Van Blaricom v. Kronenberg, 50 P.3d 266 (Wash. Ct. App. 2002) (attorney may be liable for section 1983 violation for using Washington prejudgment statute that is unconstitutional as applied when no exigent circumstances). See also Frasher v. Fox Distrib. of S.W. Fla., Inc., 813 So. 2d 1017 (Fla. Dist. Ct. App. 2002) (affidavit insufficient to support prejudgment attachment, on both due process and state statutory grounds, where affiant failed to allege personal knowledge of grounds of issuing the writ); State ex rel. Goldberg v. Mahoning Cty. Probate Ct., 753 N.E.2d 192 (Ohio 2001) (judge’s prejudgment order to seize property of attorney accused of stealing settlement proceeds was unconstitutional because no affidavit, bond, or ruling by independent magistrate). But see Quinata v. Nishimura, 2013 WL 5503108 (D. Haw. Oct. 2, 2013) (exigent circumstances need not be shown for ex parte writ of immediate possession when procedure included a sworn affidavit, a bond, issuance of the writ by a judge, opportunity for debtor to post counterbond, and prompt post-deprivation hearing), aff’d, 608 Fed. Appx. 550 (9th Cir. 2015). See generally National Consumer Law Center, Repossessions §§ 5.4.2.1 (constitutionality of state replevin procedures), 15.13 (constitutionality of state lien laws) (9th ed. 2017), updated at www.nclc.org/library.

  • 244 Leleux v. Hassan, 2017 WL 6883992 (W.D. La. Dec. 4, 2017) (Mag.) (declining to dismiss debtor’s wife’s section 1983 challenge to Louisiana law that allowed garnishment of her wages as community property, without notice to her, to collect judgment against debtor), later decision at 2018 WL 4469427 (W.D. La. Sept. 6, 2018) (granting summary judgment to defendant; notice to one spouse is constitutionally sufficient if spouses reside together), adopted by 2018 WL 4440886 (W.D. La. Sept. 17, 2018); Cotto-Rivera v. Morales-Sanchez, 815 F. Supp. 2d 442 (D. P.R. 2011). See also In re Hill, 197 F.3d 1135 (11th Cir. 1999) (transfer to tenancy by entireties may be attacked as fraudulent transfer, but due process requires that non-debtor spouse be made a party to this proceeding); Nat’l Union Fire Ins. Co. of Pittsburgh v. Greene, 985 P.2d 590 (Ariz. Ct. App. 1999) (non-debtor has due process rights when judgment creditor seeks to execute upon community property; however, no violation here where she joined in debtor’s timely motion to quash garnishment, so apparently had notice of it); Highsmith v. Dep’t of Pub. Aid, 803 N.E.2d 652 (Ill. App. Ct. 2004) (joint account holder has right to due process in hearing to claim ownership of funds state sought to attach for his son’s child support debt). Cf. Lind v. Midland Funding, L.L.C., 688 F.3d 402 (8th Cir. 2012) (failure to send separate notice of joint bank account garnishment to non-debtor wife did not deny her due process where she received actual notice and promptly contested it); Billiar v. Atl. Credit & Fin., Inc., 2011 WL 3418196 (D. Minn. Aug. 4, 2011) (freezing of non-debtor’s funds in joint accounts was deprivation of property sufficient to invoke Due Process Clause, but plaintiffs failed to state a claim where collector’s cover letter instructed bank to freeze only debtor’s funds). But see Price v. Sec’y of Revenue & Taxation, 664 So. 2d 802 (La. Ct. App. 1995) (under community property law, wages of non-debtor wife could be garnished without notice for tax debt of husband’s corporation).

  • 245 Grillo v. BA Mortg., L.L.C., 2004 WL 2250974 (E.D. Pa. Oct. 4, 2004); Union Nat’l Bank v. Ciongoli, 595 A.2d 179 (Pa. Super. Ct. 1991) (violation of due process to add late charges, escrow costs, attorney fees, and advances to amount of mortgage foreclosure judgment without giving debtor notice and opportunity to be heard).

  • 246 Partin v. Davis, 675 Fed. Appx. 575 (6th Cir. 2017) (even if enforcement of state court judgment before the court ruled on plaintiffs’ motion to reconsider denial of motion for new trial violated state procedural rules, it was not a denial of due process where debtors had been given notice and an opportunity to be heard in the underlying collection action). See generally National Consumer Law Center, Fair Debt Collection § 14.11.4 (9th ed. 2018), updated at www.nclc.org/library.

  • 247 National Consumer Law Center, Fair Debt Collection § 14.11 (9th ed. 2018), updated at www.nclc.org/library; National Consumer Law Center, Repossessions § 13.7 (9th ed. 2017), updated at www.nclc.org/library.