H 3684 Session 111 (1995-1996)
H 3684 General Bill, By Stille, Bailey, H. Brown, Cooper, R.J. Herdklotz,
McCraw, Phillips, Simrill and Tripp
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 1995"; to provide procedures which grant to
persons who have sued to recover certain debts or 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, and other personal property of the debtor.
02/23/95 House Introduced and read first time HJ-27
02/23/95 House Referred to Committee on Judiciary HJ-27
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
1995"; TO PROVIDE PROCEDURES WHICH GRANT TO
PERSONS WHO HAVE SUED TO RECOVER CERTAIN DEBTS
OR 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, AND OTHER PERSONAL PROPERTY
OF THE DEBTOR.
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 1995'.
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,
and commissions of the judgment debtor. In addition, a judgment
creditor may subject to garnishment any debt due to defendant by a
third person, and any tangible or intangible personal property of
defendant in the possession or control of a third person.
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
defendant but before the writ of garnishment is issued, the plaintiff,
shall file a motion stating the amount of the judgment and that the
plaintiff does not believe that defendant has in his possession visible
property on which a levy can be made sufficient to satisfy the
judgment. The motion 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 may be issued by the court.
(2) To obtain issuance of the writ, the plaintiff shall file in the
court where the action is pending a verified motion or 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 sued out 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 15-42-140.
Upon issuance of the writ of garnishment, the court shall provide
by mail a copy of the writ to the defendant.
(3) Except when the plaintiff has had an attachment writ issued,
no writ of garnishment before judgment may issue 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 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) All debts owed by the garnishee to the defendant at the time
of service of the writ of garnishment upon the garnishee and all
debts accruing from the garnishee to the defendant from the date of
service to the date of the garnishee's answer shall be subject to
process of garnishment; and no payment made by the garnishee to
the defendant or to his order, or by any arrangement between the
defendant and the garnishee, after the date of the service of the writ
of garnishment upon the garnishee, shall defeat the lien of such
garnishment.
(C) All property, money, or effects of the defendant in the
possession or control of the garnishee at the time of service of the
summons of garnishment upon the garnishee or coming into the
possession or control of the garnishee at any time from the date of
service of the writ of garnishment upon the garnishee to the date of
the garnishee's answer shall be subject to process of garnishment
except, in the case of collateral securities in the hands of a creditor,
such securities shall not be subject to garnishment so long as there
is an amount owed on the debt for which the securities were given
as collateral.
(D) (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 (D)(1)(b) of this subsection shall be used.
(E) The limitation on garnishment set forth in subsection (D)
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 (D), as applicable, regardless of the
number of writs.
Section 15-42-80. No employer may discharge any employee by
reason of the fact that his earnings have been subjected to
garnishment for any one indebtedness, even though more than one
writ of garnishment may be served upon the employer with respect
to the indebtedness.
Section 15-40-90. (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 shall require the garnishee to serve
an answer to it on plaintiff within thirty days after service stating
whether he is indebted to defendant at the time of the answer, or
was indebted at the time of service of the writ, or at any time
between those times; and in what sum and what tangible or
intangible personal property of defendant he has in his possession
or control at the time of his answer, or had at the time of the
service of the writ, or at any time between those times; and whether
he knows of any other person indebted to defendant, or who may
have any of the property of defendant in his possession or control.
The writ must state the amount named in plaintiff's motion.
Section 15-42-110. Within ten days after service of the
garnishee's answer on the plaintiff or after the time period for the
garnishee's answer has expired, the plaintiff shall serve, by mail,
the following documents: a copy of the writ, a copy of the answer,
a notice, and a certificate of service. The notice must advise the
recipient that he must move to dissolve the writ within the time
period set forth in Section 15-42-140 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 and on any other person disclosed in the
garnishee's answer to have any ownership interest in the deposit,
account, or property controlled by the garnishee. The plaintiff shall
file in the proceeding a certificate of this service.
Section 15-42-120. (A) Service of the writ makes the garnishee
liable for all debts due by him to defendant and for any tangible or
intangible personal property of defendant in his possession or
control at the time of the service of the writ or at any time between
the service and the time of his answer.
(B) The garnishee shall report in its answer and retain, subject
to the provisions of Section 15-42-230 and subject to disposition as
provided in this chapter, any deposit, account, or tangible, or
intangible personal property in the possession or control of the
garnishee, and the answer must state the name or names and
addresses, if known to the garnishee, of the defendant and any other
persons having or appearing to have an ownership interest in the
involved property.
(C) In any case where a garnishee in good faith is in doubt as to
whether any indebtedness or property 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 the provisions of
Section 15-42-130 and 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.
(D) Service of a writ on a garnishee renders him liable as
provided in this chapter in any fiduciary or representative capacity
held by him if the fiduciary or representative capacity is specified
in the writ.
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.
On failure of plaintiff to file a reply, the answer must be taken as
true and on proper disposition of the assets, if any are disclosed
thereby, the garnishee is entitled to an order discharging him from
further liability under the writ.
Section 15-42-140. (A) The defendant, by motion, may obtain
the dissolution of a writ of garnishment, unless the petitioner 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 down the motion for an immediate
hearing. If the 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, shall
file and serve a motion to dissolve the garnishment within thirty
days after the date indicated in the certificate of service on the
defendant and such other person of the plaintiff's notice required by
Section 15-42-110 stating that any allegation in plaintiff's motion
for writ is untrue. On this motion this issue must be tried, and, if
the allegation in plaintiff's motion which is denied is not proved to
be true, the garnishment must be dissolved. Failure of the
defendant or other interested person to timely file and serve the
motion to dissolve within the time limitation must result in the
striking of the motion as an unauthorized nullity by the court, and
the proceedings must be in a default posture as to the party
involved.
(C) If the motion denies the debt demanded before judgment,
the judge may require pleadings on motion of either party on the
debt demanded to be filed in such time as he fixes.
(D) The issue, if any, raised by the pleadings must be tried at
the same time as the issue, if any, made by defendant's motion to
plaintiff's motion.
Section 15-42-150. On demand of either party, a jury must be
impaneled to try the issues.
Section 15-42-160. (A) If the garnishee fails to answer as
required, a default must be entered against him.
(B) On the entry of judgment for plaintiff, a final judgment
must be entered against the garnishee for the amount of plaintiff's
claim with interest and costs. No final judgment against a
garnishee may be entered before the entry of, or in excess of, the
final judgment against the original 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 and
judgment for his costs entered.
Section 15-42-170. If no reply to garnishee's answer is served,
garnishee may surrender any goods, chattels, or effects of defendant
in his hands or possession to the sheriff and may pay any money or
debt into registry of court. In this event or if garnishee prevails in
the trial of any reply and after proper disposition of any property
disclosed by his answer, the court shall discharge him from further
liability under the writ.
Section 15-42-180. Judgment against the garnishee on his answer
or after trial of a reply to his answer must be entered for the
amount of his liability as disclosed by the answer or trial. The
court may subpoena the garnishee to inquire about his liability to or
possession of property of the defendant. No judgment in excess of
the amount remaining unpaid on the final judgment against the
defendant or in excess of the amount of the liability of the
garnishee to the defendant, whichever is less, may be entered
against the garnishee.
Section 15-42-190. If garnishee does not surrender the personal
property belonging to defendant, so long as he has the power to do
so, and which he has admitted is in his possession, the court may
order execution issued against garnishee for the unpaid amount of
plaintiff's judgment against defendant. Garnishee's property may
be sold as under other executions. Garnishee may release his
property from the levy and sale by surrendering the property of
defendant to the officer levying the execution at the time appointed
for the sale of his property so levied on, or at any time before the
day of the sale and by paying the costs of the proceedings to sell up
to the time of the surrender.
Section 15-42-200. When any garnishee has any of the personal
property of defendant in his possession or control and surrenders it,
the sheriff or other appropriate officer shall receive the property and
sell it under the execution against defendant.
Section 15-42-210. If the answer of garnishee shows that there is
any of defendant's personal property in the possession or control of
any person who has not been garnisheed, on motion of plaintiff a
writ of garnishment shall issue against the person having personal
property of the defendant and the person shall answer and is liable
as other garnishees.
Section 15-42-220. (A) If a person other than defendant claims
that the debt due by a garnishee is due to him and not to defendant,
or that the property in the hands or possession of any garnishee is
his property and makes an affidavit to that effect, the court shall
impanel a jury to determine the right of property between the
claimant and plaintiff unless a jury is waived.
(B) If the verdict is against the claimant, plaintiff shall recover
costs. If the verdict is in favor of the claimant, he shall recover
costs against plaintiff.
(C) If the claim is interposed after a levy on property, the
officer making the levy shall return the execution with his levy
thereon and the affidavit of the claimant to the court from which
execution issued, and the proceedings must be as in other cases of
claims made to property taken on execution.
Section 15-42-230. No garnishee who is indebted to or has in his
possession the money of a person whose money or credits may be
garnisheed may retain out of the money more than double the
amount which the writ of garnishment specifies as the amount
plaintiff expects to recover or more than double the amount of the
judgment plaintiff has recovered.
Section 15-42-240. (A) If the judgment is for defendant in the
main action, plaintiff shall pay all costs which have accrued in
consequence of suing out a writ of garnishment before judgment
and the money or property brought into the court or custody of the
officer thereby inures to the benefit of and must be controlled by
defendant as completely as though it had been rendered in his favor.
(B) If plaintiff dismisses his action or has a judgment against
him on the trial, the judgment against garnishee becomes a nullity
and garnishee shall have execution for his costs against plaintiff.
Section 15-42-250. At any time before the entry of judgment, a
defendant whose property 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 property 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 property.
The order becomes effective on its filing with the bond. If
garnishee admits a debt to or possession of property of defendant 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 or property of
defendant except in a sum deemed by the court sufficient to satisfy
plaintiff's claim with interest and costs.
Section 15-42-260. The remedy provided by this is not exclusive
but is in addition to the collection procedure provided by the laws
of this State in effect at the time this act takes effect and is optional
with the judgment creditor.
Section 15-42-270. This act does not apply to garnishment for
income tax purposes or garnishment for child support purposes,
which are provided for otherwise by the laws of this State."
SECTION 2. This act takes effect upon approval by the
Governor.
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