Current Status Bill Number:3865 Type of Legislation:General Bill GB Introducing Body:House Introduced Date:19970409 Primary Sponsor:Tripp All Sponsors:Tripp, Cromer, Stille, Klauber, Barrett, Bailey, Phillips, McCraw, Simrill, Cooper, H. Brown, G. Brown, Maddox, Davenport, Koon, Littlejohn and Seithel Drafted Document Number:gjk\20482sd.97 Residing Body:House Current Committee:Judiciary Committee 25 HJ Subject:Garnishment Act of 1997, Courts, Torts, Consumer Affairs, Employers and Employees
Body Date Action Description Com Leg Involved
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House 19970409 Introduced, read first time, 25 HJ
referred to Committee
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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:
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:
'
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.