13.5.5 Notice Must Inform Debtor of Procedures to Contest Garnishment
13.5.5 Notice Must Inform Debtor of Procedures to Contest Garnishment
In a utility termination case, the Supreme Court held that notice of the customer’s right to dispute a municipal utility’s actions was not meaningful unless the notice included a statement of the procedure that the customer should use to challenge the deprivation of services.279 Federal courts have applied this principle to garnishment and execution notices by requiring that the notice state what action a debtor may take to contest the procedure.280
A Second Circuit decision holds that a mere citation to the statute or court rule governing procedures to contest garnishment is a sufficient description of those procedures.281 The court upheld a garnishment notice that told the debtor that procedures were available to challenge garnishment, cited the procedures without explanation, and told the debtor to contact either the creditor or an attorney, including legal aid. The court found no due process violation in that case even though the debtor had contacted the creditor, as the notice advised, and the creditor continued the garnishment process, denying receiving the welfare check stub that the debtor sent him to prove the exemption.282 A far more effective procedure to enable the debtor to protect exempt property is a garnishment notice that contains the form the state’s courts use to claim an exemption, specifies the where and when to file an exemption claim, and advises the debtor to consult an attorney.283
Footnotes
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279 Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978). See also Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (discussing notice requirements).
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280 Strickland v. Alexander, 153 F. Supp. 3d 1397, 1410–1414 (N.D. Ga. 2015), as amended by 154 F. Supp. 3d 1347 (N.D. Ga. 2015). See also New v. Gemini Capital Grp., 859 F. Supp. 2d 990 (S.D. Iowa 2012) (denying judgment creditor’s motion for summary judgment; notice that did not disclose exemptions or method for claiming them was inadequate); Hutchinson v. Cox, 784 F. Supp. 1339 (S.D. Ohio 1992) (denial of due process not to inform judgment debtor of exemptions to postjudgment execution and procedure for claiming them).
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281 McCahey v. L.P. Inv’rs, 774 F.2d 543 (2d Cir. 1985). See also Burris v. Mahaney, 716 F. Supp. 1051 (M.D. Tenn. 1989) (due process satisfied when employer showed debtor a garnishment document that stated she had a right to “apply to the court for an order staying further garnishment proceedings and allowing [installment payments]”); Neeley v. Century Fin. Co., 606 F. Supp. 1453, 1461, 1465–1466 (D. Ariz. 1985) (notice satisfied due process when it stated: “[I]f you believe this order is improper or unlawful, that your property is exempt by law or that the answer of the garnishee is incorrect, you may request a hearing before this court pursuant to Arizona Revised Statutes § 12-1589. You must request the hearing no later than the twentieth day after you receive the answer of the garnishee.”).
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282 McCahey v. L.P. Inv’rs, 774 F.2d 543 (2d Cir. 1985).
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283 See, e.g., First Resolution Inv. Corp. v. Seker, 795 A.2d 868 (N.J. 2002) (rejecting constitutional challenge but ordering Civil Practice Committee to revise form notice to provide further information to debtor about how to challenge garnishment).