S 1184 Session 111 (1995-1996)
S 1184 General Bill, By Leventis
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 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.
02/27/96 Senate Introduced and read first time SJ-9
02/27/96 Senate Referred to Committee on Judiciary SJ-9
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
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:
"CHAPTER 42
South Carolina Garnishment Act
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.
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