Originally printed in the Dallas Bar Association Headnotes publication by author Peter Chen
Does your company hold a judgment against one of its ex-customers?
If so, Bailey & Galyen can help you collect the judgment in a number of different ways. One way is through a writ of garnishment.
Pursuant to CPRC §63.001(3), a post-judgment writ of garnishment is available if ”a plaintiff has a valid, subsisting judgment and makes an affidavit stating that, within the plaintiff’s knowledge, the defendant does not possess property in Texas subject to execution sufficient to satisfy the judgment.” In light of what appear to be relatively simple requirements, Texas courts have long held that garnishment is a summary and harsh remedy, requiring strict compliance with the statutory provisions and related rules.
Unlike a writ of execution, a post – judgment writ of garnishment may be applied for and issued immediately after entry of a final judgment. TRCP 657. Thus, post – judgment garnishment actions are often quick-strike opportunities, as a debtor will likely withdraw assets from any suspected target of collection actions. Accordingly, it is vitally important that a post-judgment garnishor gets it right the first time around. The following are five common, though not exclusive, errors to be avoided:
- Affidavits that merely regurgitate the statutory language are insufficient. The rules require that the affidavit be either based on personal knowledge, “set[ting] forth such facts as would be admissible in evidence,” or based on information and belief, provided “the grounds of such belief are specifically stated.”
- In cases where the underlying judgment is against multiple defendants, an affidavit that addresses only one defendant is insufficient.
- A writ of garnishment that does not issue from the court that issued the underlying judgment is defective. Note that when instituting garnishment proceedings that arise from a judgment rendered in another state, this requirement necessitates domestication of the foreign judgment under the Uniform Enforcement of Foreign Judgments Act, CPRC chapter 35.
- A writ served on the garnishee by a private process server cannot be sustained. TRCP 663 makes explicitly clear that only a sheriff or constable may serve the writ of garnishment on the garnishee.
- Without service on the debtor, a garnishment cannot be sustained. The rules require that a copy of the writ be served on the judgment debtor ”as soon as practicable following the service of the writ.” Although this rule does not provide an explicit deadline, a 15-day delay before serving the debtor has been held to be too long, according to Texas courts. In contrast to the requirements for service on the garnishee, the rules allow for service on the debtor as provided in TRCP 21a. And, it is worth noting that ”[a]ctual knowledge or a voluntary appearance by the debtor is insufficient and does not waive rule 663’s requirement of service.”
If you or your company has any “bad debts,” feel free to contact the attorneys at Bailey & Galyen to see if we can help turn those bad debts into good money.