Rule
64D. Writ of garnishment.
(a)
Availability. A writ of garnishment is
available to seize property of the defendant in the possession or under the
control of a person other than the defendant. A writ of garnishment is
available after final judgment or after the claim has been filed and prior to
judgment. The maximum portion of disposable earnings of an individual subject
to seizure is the lesser of:
(a)(1) 50% of the defendant’s
disposable earnings for a writ to enforce payment of a judgment for failure to
support dependent children or 25% of the defendant’s disposable earnings for
any other judgment; or
(a)(2) the amount by which the
defendant’s disposable earnings for a pay period exceeds the number of weeks in
that pay period multiplied by thirty times the federal minimum hourly wage
prescribed by the Fair Labor Standards Act in effect at the time the earnings
are payable.
(b)
Grounds for writ before judgment. In addition to the
grounds required in Rule 64A,
the grounds for a writ of garnishment before judgment require all of the
following:
(b)(1) that the defendant is
indebted to the plaintiff;
(b)(2) that the action is upon a
contract or is against a defendant who is not a resident of this state or is
against a foreign corporation not qualified to do business in this state;
(b)(3) that payment of the claim
has not been secured by a lien upon property in this state;
(b)(4) that the garnishee
possesses or controls property of the defendant; and
(b)(5) that the plaintiff has
attached the garnishee fee established by Utah Code Section 78A-2-216.
(c)
Statement. The application for a
post-judgment writ of garnishment shall state:
(c)(1) if known, the nature,
location, account number and estimated value of the property and the name,
address and phone number of the person holding the property;
(c)(2) whether any of the
property consists of earnings;
(c)(3) the amount of the judgment
and the amount due on the judgment;
(c)(4) the name, address and
phone number of any person known to the plaintiff to claim an interest in the
property; and
(c)(5) that the plaintiff has
attached or will serve the garnishee fee established by Utah Code Section 78A-2-216.
(d)
Defendant identification. The plaintiff shall submit with
the affidavit or application a copy of the judgment information statement
described in Utah Code Section 78B-5-201 or the defendant’s name
and address and, if known, the last four digits of the defendant’s social
security number and driver license number and state of issuance.
(e)
Interrogatories. The plaintiff shall submit with
the affidavit or application interrogatories to the garnishee inquiring:
(e)(1) whether the garnishee is
indebted to the defendant and the nature of the indebtedness;
(e)(2) whether the garnishee
possesses or controls any property of the defendant and, if so, the nature,
location and estimated value of the property;
(e)(3) whether the garnishee
knows of any property of the defendant in the possession or under the control
of another, and, if so, the nature, location and estimated value of the
property and the name, address and phone number of the person with possession
or control;
(e)(4) whether the garnishee is
deducting a liquidated amount in satisfaction of a claim against the plaintiff
or the defendant, a designation as to whom the claim relates, and the amount
deducted;
(e)(5) the date and manner of the
garnishee’s service of papers upon the defendant and any third persons;
(e)(6) the dates on which
previously served writs of continuing garnishment were served; and
(e)(7) any other relevant
information plaintiff may desire, including the defendant’s position, rate and
method of compensation, pay period, and the computation of the amount of
defendant’s disposable earnings.
(f)
Content of writ; priority. The writ shall instruct the
garnishee to complete the steps in subsection (g) and instruct the garnishee
how to deliver the property. Several writs may be issued at the same time so
long as only one garnishee is named in a writ. Priority among writs of
garnishment is in order of service. A writ of garnishment of earnings applies
to the earnings accruing during the pay period in which the writ is effective.
(g)
Garnishee’s responsibilities. The writ shall direct the
garnishee to complete the following within seven business days of service of
the writ upon the garnishee:
(g)(1) answer the interrogatories
under oath or affirmation;
(g)(2) serve the answers on the plaintiff;
and
(g)(3) serve the writ, answers,
notice of exemptions and two copies of the reply form upon the defendant and
any other person shown by the records of the garnishee to have an interest in
the property.
The garnishee may amend answers
to interrogatories to correct errors or to reflect a change in circumstances by
serving the amended answers in the same manner as the original answers.
(h)
Reply to answers; request for hearing.
(h)(1) The plaintiff or defendant
may file and serve upon the garnishee a reply to the answers, a copy of the
garnishee’s answers, and a request for a hearing. The reply shall be filed and
served within 14 days after service of the answers or amended answers, but the
court may deem the reply timely if filed before notice of sale of the property
or before the property is delivered to the plaintiff. The reply may:
(h)(1)(A) challenge the issuance
of the writ;
(h)(1)(B) challenge the accuracy
of the answers;
(h)(1)(C) claim the property or a
portion of the property is exempt; or
(h)(1)(D) claim a set off.
(h)(2) The reply is deemed
denied, and the court shall conduct an evidentiary hearing as soon as possible
and not to exceed 14 days.
(h)(3) If a person served by the
garnishee fails to reply, as to that person:
(h)(3)(A) the garnishee’s answers
are deemed correct; and
(h)(3)(B) the property is not
exempt, except as reflected in the answers.
(i) Delivery of property. A
garnishee shall not deliver property until the property is due the defendant.
Unless otherwise directed in the writ, the garnishee shall retain the property
until 21 days after service by the garnishee under subsection (g). If the
garnishee is served with a reply within that time, the garnishee shall retain
the property and comply with the order of the court entered after the hearing
on the reply. Otherwise, the garnishee shall deliver the property as provided
in the writ.
(j)
Liability of garnishee.
(j)(1) A garnishee who acts in
accordance with this rule, the writ or an order of the court is released from
liability, unless answers to interrogatories are successfully controverted.
(j)(2)(A) If the garnishee fails
to comply with this rule, the writ or an order of the court, the court may
order the garnishee to appear and show cause why the garnishee should not be
ordered to pay such amounts as are just, including the value of the property or
the balance of the judgment, whichever is less, and reasonable costs and
attorney fees incurred by parties as a result of the garnishee’s failure. If
the garnishee shows that the steps taken to secure the property were
reasonable, the court may excuse the garnishee’s liability in whole or in part.
(j)(2)(B) The creditor must
attach to the motion for an order to show cause a statement that the creditor
has in good faith conferred or attempted to confer with the garnishee in an
effort to settle the issue without court action.
(j)(3) No person is liable as
garnishee by reason of having drawn, accepted, made or endorsed any negotiable
instrument that is not in the possession or control of the garnishee at the
time of service of the writ.
(j)(4) Any person indebted to the
defendant may pay to the officer the amount of the debt or so much as is
necessary to satisfy the writ, and the officer’s receipt discharges the debtor
for the amount paid.
(j)(5) A garnishee may deduct
from the property any liquidated claim against the plaintiff or defendant.
(k)
Property as security.
(k)(1) If property secures
payment of a debt to the garnishee, the property need not be applied at that time
but the writ remains in effect, and the property remains subject to being
applied upon payment of the debt. If property secures payment of a debt to the
garnishee, the plaintiff may obtain an order authorizing the plaintiff to buy
the debt and requiring the garnishee to deliver the property.
(k)(2) If property secures an
obligation that does not require the personal performance of the defendant and
that can be performed by a third person, the plaintiff may obtain an order
authorizing the plaintiff or a third person to perform the obligation and
requiring the garnishee to deliver the property upon completion of performance
or upon tender of performance that is refused.
(l)
Writ of continuing garnishment.
(l)(1) After final judgment, the
plaintiff may obtain a writ of continuing garnishment against any non-exempt
periodic payment. All provisions of this rule apply to this subsection, but
this subsection governs over a contrary provision.
(l)(2) A writ of continuing
garnishment applies to payments to the defendant from the effective date of the
writ until the earlier of the following:
(l)(2)(A) one year;
(l)(2)(B) 120 days after service
of a second or subsequent writ of continuing garnishment;
(l)(2)(C) the last periodic
payment;
(l)(2)(D) the judgment is stayed,
vacated or satisfied in full; or
(l)(2)(E) the writ is discharged.
(l)(3) Within seven days after
the end of each payment period, the garnishee shall with respect to that
period:
(l)(3)(A) answer the
interrogatories under oath or affirmation;
(l)(3)(B) serve the answers to
the interrogatories on the plaintiff, the defendant and any other person shown
by the records of the garnishee to have an interest in the property; and
(l)(3)(C) deliver the property as
provided in the writ.
(l)(4) Any person served by the
garnishee may reply as in subsection (g), but whether to grant a hearing is
within the judge’s discretion.
(l)(5) A writ of continuing
garnishment issued in favor of the Office of Recovery Services or the
Department of Workforce Services of the state of Utah to recover overpayments:
(l)(5)(A) is not limited to 120
days;
(l)(5)(B) has priority over other
writs of continuing garnishment; and
(l)(5)(C) if served during the
term of another writ of continuing garnishment, tolls that term and preserves
all priorities until the expiration of the state’s writ.