FIRST UNION NATIONAL BANK OF FLORIDA, PETITIONER,
v.
LARRY A. KNYAL AND ALICE L. KNYAL, RESPONDENTS
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First Union petitioned for a writ of mandamus to compel the trial court to issue a post-judgment continuing writ of garnishment against judgment debtors. The court held that post-judgment garnishment does not require prior notice and hearing to the debtor before issuance of the writ, distinguishing it from pre-judgment garnishment.
A judgment debtor is not entitled to notice and a hearing before issuance of a post-judgment writ of garnishment. Once a judgment is entered, the plaintiff has a right to a post-judgment writ of garnishment, and the court shall issue it upon the plaintiff's motion.
[1] Post-judgment garnishment provides a procedure for the enforcement of a judgment after the validity of the debt has been adjudicated.
[2] Due process under the Fourteenth Amendment of the United States Constitution does not require prior notice to a judgment debtor and a hearing before a writ of garnishment…
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Join FLexlaw to unlock all legal intelligence“neither due process under the Fourteenth Amendment of the United States Constitution nor any provision of the Florida Constitution requires prior notice to a judgment debtor and a hearing before a writ of garnishment may issue”
Establishes that post-judgment garnishment does not require constitutional due process protections of notice and hearing before issuance
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Join FLexlaw to unlock all legal intelligenceFirst Union obtained a final judgment against the Knyals for $91,353.39. The debtors were credited $76,714.00, leaving a balance owed plus post-judgme…
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PER CURIAM.
First Union National Bank of Florida petitions this court for a writ of mandamus to compel the trial court to issue a continuing writ of garnishment pursuant to section 77.0305, Florida Statutes.
A final judgment was entered in favor of First Union and against the debtors for $91,353.39. The debtors were credited $76,714.00. First Union moved for a post- judgment continuing writ of garnishment pursuant to section 77.0305 to collect the balance of the debt and the post-judgment interest. The trial court denied the motion, concluding that the debtors were entitled to notice and a hearing before issuing the writ of garnishment.
The Florida Supreme Court has recognized that there is a distinction between pre-judgment and post-judgment garnishment. United Presidential Life Ins. Co. v. King, 361 So. 2d 710, 713 (Fla.1978). Post-judgment garnishment provides a procedure for enforcement of a judgment after the validity of the debt has been adjudicated. Id. In this situation, the supreme court held, “neither due process under the Fourteenth Amendment of the United States Constitution nor any provision of the Florida Constitution requires prior notice to a judgment debtor and a hearing before a writ of garnishment may issue.” Id.
Because First Union recovered a judgment against the debtors, First Union has the right to a writ of garnishment. § 77.01, Fla. Stat. (2003). Upon motion by the plaintiff (First Union), the court shall issue the continuing writ of garnishment. §§ 77.03 and 77.0305, Fla. Stat. (2003). Once the writ issues, the garnishee has twenty days to serve an answer. § 77.04, Fla. Stat. (2003). In addition, upon issuance of the writ, if the debtor is an individual, the clerk of the court shall attach a notice of right against garnishment of wages or other property. § 77.041, Fla. Stat. (2003). Pursuant to section 77.041, the debtor can claim certain exemptions in writing, and the debtor has the right to request a hearing. After the garnishee serves its answer, or the time for service has expired, the petitioner is required to serve the debtor with the garnishee’s answer and a notice that the debtor must move within twenty days to dissolve the writ if any of the allegations in the motion for garnishment are untrue. § 77.055, Fla. Stat. (2003).
First Union is entitled to a post-judgment writ of garnishment, and the debtors do not have a right to a hearing before issuance of the writ. Therefore, we grant the petition for writ of mandamus. The circuit court shall issue the continuing writ of garnishment in accordance with Chapter 77, Florida Statutes.
STONE, TAYLOR and HAZOURI, JJ., concur.
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Citator
Cited By
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Charter Schs. USA, Inc. v. John DOE NO. 93, 152 So. 3d 657 (Fla. 3d DCA 2014)…d. I agree. . A motion for the issuance of a writ of garnishment "after the validity of the debt has been adjudicated” does not entitle the judgment debtor to "notice and a hearing” before the writ is issued. First Union Nat. Bank of Fla. v. Knyal, 874 So. 2d 716, 717 (Fla. 4th DCA 2004). Nonetheless, the applicable statute requires that the motion be filed, and the rules of procedure required that it be served. . Before the pertinent rules on e-mail were added, it was permissible for an attorney for a judg…
Authorities Cited
- United Presidential Life Ins. Co. v. Macon M. King, 361 So. 2d 710 (Fla. 1978)