H 3865 Session 112 (1997-1998)
H 3865 General Bill, By Tripp, Bailey, Barrett, G. Brown, H. Brown, Cooper,
J.L.M. Cromer, Davenport, Klauber, Koon, Littlejohn, Maddox, McCraw, Phillips,
Seithel, Simrill and Stille
Similar(S 592, H 3355, H 3881)
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 1997", WHICH PROVIDES PROCEDURES THAT GRANT TO
PERSONS WHO 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, CAPITAL GAINS, BONUSES, AND
COMMISSIONS OF THE DEBTOR; AND TO REPEAL SECTION 37-5-104 RELATING TO THE
PROHIBITION AGAINST GARNISHMENT FOR DEBTS ARISING FROM A CONSUMER CREDIT SALE.
04/09/97 House Introduced and read first time HJ-28
04/09/97 House Referred to Committee on Judiciary HJ-28
05/13/97 House Tabled in committee Judiciary
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
1997", WHICH PROVIDES PROCEDURES THAT GRANT
TO PERSONS WHO 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, CAPITAL GAINS, BONUSES,
AND COMMISSIONS OF THE DEBTOR; AND TO REPEAL
SECTION 37-5-104 RELATING TO THE PROHIBITION
AGAINST GARNISHMENT FOR DEBTS ARISING FROM A
CONSUMER CREDIT SALE.
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 1997'.
Section 15-42-20. (A) Every person who has recovered judgment
in any court against another person has a right to a writ of
garnishment, as 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 or as
otherwise provided in this chapter, no other types of income or
personal property of the debtor are subject to garnishment, and the
term 'property' or 'income' 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.
(B) Child support payments are not income subject to garnishment
under this chapter. However, garnishment of income for required
child support payments otherwise provided for by the laws of this
State or under federal law continues in full force and effect and is not
effected by the provisions of this chapter.
(C) A writ of garnishment must not be issued to subject to an
obligation to garnish any person paying income to the debtor as a
tenant, client, or customer of the debtor.
Section 15-42-30. (A) After judgment has been obtained against
a defendant, the judgment creditor shall serve notice of intent to
apply for a writ of garnishment on the debtor. The judgment creditor
also shall file with the notice an affidavit of search stating the amount
of the judgment and that the plaintiff has searched for and was unable
to find property on which a levy may be made sufficient to satisfy the
judgment. The affidavit of search may be filed and the writ issued
either before or after the return of execution. The notice shall give
the judgment debtor thirty days to respond, which response must be
in writing and served upon the judgment creditor.
(B) The notice must be in writing and conspicuously state: the
name, address, and telephone number of the judgment creditor to
whom the garnished payments must be made, a brief identification of
the debt and a statement that if the debt is not paid the judgment
creditor may apply for a writ of garnishment, the debtor's right to
cure the debt, and the amount of payment and date by which payment
must be made to cure the debt before garnishment. A notice shall be
in substantially the following form:
'
(name, address, and telephone number of judgment
creditor)
(name, address, and telephone number of judgment
debtor)
(amount of judgment now due)
(description of judgment)
last date for payment before garnishment applied
for.'
Section 15-42-40. (A) Thirty days after service of the notice, the
judgment creditor may file with the circuit court the original notice,
affidavit of search, affidavit of service, any response and a motion for
writ of garnishment together with a filing fee of twenty-five dollars.
If the judgment debtor serves an answer to the notice, the court shall
set the motion for hearing and notify all parties of the hearing.
(B) If the judgment debtor fails to answer as required, the
judgment creditor shall file with the circuit court, the original notice,
affidavit of search, affidavit of service, affidavit of default, and a
motion for writ of garnishment. If the judgment debtor fails to
answer, the court shall issue a writ of garnishment against the
judgment debtor for the amount of the judgment.
(C) Upon receipt of the writ of garnishment, the judgment creditor
shall forward a copy to the employer or other garnishee of the
judgment debtor which writ shall provide for the periodic payments
of a stated portion of the salary or wages of the judgment debtor as
provided in Section 15-42-50. The judgment creditor also shall
forward to the employer or other garnishee instructions for the
manner in which the remittance by the employer or other garnishee
to the judgment creditor must be made, the content of which must be
prescribed by court rule.
(D) Until the judgment is satisfied or until otherwise provided by
court order, the court shall allow the judgment debtor's employer or
other garnishee to collect up to five dollars against the salary or
wages of the judgment debtor to reimburse the employer or other
garnishee for administrative costs for the first deduction from the
judgment debtor's salary or wages and up to one dollar for each
deduction thereafter.
(E) The employer or other garnishee shall remit the funds withheld
to the judgment creditor within fifteen days after withholding. An
employer or other garnishee who wilfully violates the requirements
of this chapter in regard to the garnishment and remittance of an
employee's earnings or other garnishable income to a judgment
creditor is subject to a civil penalty of two hundred fifty dollars for
each violation to be imposed at the discretion of the court. The
creditor has a right of action against the employer for any garnished
wages not remitted, to include the recovery of reasonable attorneys'
fees and costs.
(F) The employee must be fully credited with payment toward the
debt in the amount garnished even if those funds are not remitted to
the creditor by the employer or other garnishee.
Section 15-42-50. (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
amount required by law to be withheld.
(2) 'Earnings' means compensation paid or payable for personal
service, whether denominated as wages, salary, commission, bonus,
or otherwise.
(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 section must be used.
(C) The limitation of 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 administrative costs as detailed in Section 15-42-40(D)
count when computing the maximum amount of disposable earnings
subject to garnishment.
Section 15-42-60. Within thirty days of full payment of the
amount owed, the judgment creditor shall file a satisfaction of
judgment with the clerk of court in each county where the judgment
was filed. Failure to file shall result in a penalty of two hundred fifty
dollars to be paid to the debtor.
Section 15-42-70. 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 15-42-80. Funds or benefits from a pension or retirement
program or funds or benefits from an individual retirement account
are 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, are exempt from the process of garnishment only to the
extent provided in Section 15-42-50 for other disposable earnings,
unless a greater exemption is otherwise provided by law.
Section 15-42-90. 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 15-42-100. This chapter does not apply to garnishment
for income tax purposes or other purposes which are otherwise
provided for by the laws of this State."
SECTION 2. Section 37-5-104 of the 1976 Code is repealed.
SECTION 3. This act takes effect upon approval by the Governor.
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