Challenging a Bank Garnishment in Texas

There is no guarantee that you can defeat a bank garnishment in Texas. But, there are things you can do to make sure your rights are protected.

Texas doesn’t allow a garnishment of your wages for a judgment unless that judgment is for child support or spousal maintenance. But, Texas does allow a bank garnishment for any type of civil judgment. You can read more about the distinctions between these two types of garnishments in my previous post Why Is There So Much Confusion About Garnishment in Texas.

What Is a Bank Garnishment?

Garnishing a bank account means that your judgment creditor can confiscate the money you have in any bank accounts and apply that money to what you owe on an uncollected judicial judgment. But, your creditor must apply to the court for the garnishment, so the whole process is overseen by the court.

Generally speaking, garnishment actually allows your judgment creditor to take possession of any type of property you own that is in the hands of a third party. Bank garnishment works because the bank is a third party who is holding your money in an account for you. Basically, the bank owes a debt to you equal to the amount of money in the account and the plaintiff is asking that the money the bank owes you be paid on your judgment.

When Is It Possible to Garnish a Bank Account?

Your judgment creditor may apply for a writ to garnish you bank accounts only in specific situations. Allow me to explain those situations.

1. The creditor must have a valid and final judgment against you in a Texas court. See Texas Civil Practice & Remedies Code § 63.001 (3).

A judgment is final for garnishment purposes when the judge signs it. See Texas Rules of Civil Procedure 657. What this means for you is that your creditor may apply for a bank garnishment on the day the judge signs the judgment against you. But, each of the other requirements must also be met.

2. Your judgment creditor cannot garnish your bank accounts if you are appealing the case and you file an approved supersedeas bond to suspend execution on the judgment during the appeal. See Texas Rules of Civil Procedure 657.

3. The judgment creditor has to sign an affidavit (i.e., statement under oath) that is attached to the application for writ of garnishment.

In the affidavit, the creditor takes an oath that, to his knowledge, you don’t own property in Texas that is subject to execution and that has sufficient value to pay the judgment. See Texas Civil Practices & Remedies Code § 63.001 (3). The creditor doesn’t have to prove that you don’t have adequate property in the state to satisfy the judgment, he just has to state that, to his knowledge, you don’t have enough property.

Is There Anything You Can Do to Stop a Bank Garnishment?

There is no guarantee that you can do anything to defeat the garnishment of your bank accounts. If you owe a judgment; however, there are several things you can do to make certain your judgment creditor follows both the letter and the spirit of the law while pursuing collection of that judgment.

If, for instance, you do own nonexempt property in Texas that may be taken to pay the judgment and the creditor files a writ of garnishment, he could be liable for a wrongful garnishment. Remember, the creditor has to sign an affidavit stating under oath that to his knowledge you don’t own enough property subject to execution to pay the judgment. If that statement is untrue, the creditor may be liable for a wrongful garnishment even if he had probable cause to believe the statement was true, and he didn’t act maliciously. See Peerless Oil & Gas Co. v. Teas, 138 S.W. 2d 637, 640 (Tex. Civ. App.– San Antonio 1940), aff ‘d, 158 S.W. 2d 758 (Tex. 1942).

On the other hand, the law is very clear that a wrongful garnishment occurs when your judgment creditor actually knows you have property in Texas that is subject to execution and is adequate to pay the judgment but he goes forward with a garnishment anyway. See King v. Tom, 352 S.W. 2d 910, 913 (Tex. Civ. App.– El Paso 1961, no writ); Griffin v. Cawthon, 77 S.W. 2d 700, 702 (Tex. Civ. App.– Fort Worth 1934, writ ref ‘d).

Your judgment creditor has a duty to make a reasonable inquiry to figure out whether you have any nonexempt property in Texas that he can seize with a writ of execution. See Massachusetts v. Davis, 160 S.W. 2d 543 (Tex. Civ. App.– Austin), aff ‘d in part and rev ‘d in part on other grounds, 168 S.W. 2d 216 (Tex. 1942), cert. Denied, 320 U.S. 210 (1943).

The way your judgment creditor makes a reasonable investigation is usually with Interrogatories in Aid of Judgment. If you get such interrogatories, it is your obligation to respond to them completely and truthfully under oath. You can’t hide your assets and then make a claim that the judgment creditor did a wrongfully bank garnishment.

 

Harvey L. Cox, J.D.

My name is Harvey L. Cox. I’ve been practicing law in Texas since 1990. You can contact me at my Waco office:

3201 Franklin Avenue
Suite 10
Waco, Texas 76710
(254) 230-0843

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