General Comment

This article contains the most dramatic changes from current law.  Garnishments generate the most paper of anything filed under Chapter 61.  The proposed revisions will drastically cut down on the amount of paper filed with the clerk and the need for the clerk to handle and account for garnished funds.  Communication between the judgment creditor and the garnishee on all garnishments, including service of the garnishment order, can be by regular mail, fax communication, and Internet electronic mail.

1.  Attachment.  The provisions of article 7 of chapter 60 relating to attachment shall govern attachment proceedings for actions pursuant to this chapter, except the provisions of K.S.A. 60-711, relating to the appointment of a receiver, which shall not be applicable in lawsuits filed under this chapter.

Comment

Attachment and execution against real estate will be allowed under Chapter 61.  Otherwise this is the same as K.S.A. 61-2001.

2.  Nature of garnishment.  Garnishment is a procedure whereby the wages, money or property of a person can be seized or attached pursuant to an order of garnishment issued by the court under the conditions set forth in the order.

Comment

This is a clearer definition than under current law at K.S.A. 61-2002.

3.  When garnishment available before judgment.  An order of garnishment before judgment may be obtained only upon order of a judge of the district court pursuant to the procedure to obtain an order of attachment.  No order of garnishment may be obtained before judgment where the property sought to be attached is wages earned by the person being garnished.

Comment

This is similar to K.S.A. 61-2003.

4.  When garnishment available after judgment.
(a)  As an aid to the collection of a judgment, an order of garnishment may be obtained at any time after 10 days following judgment.  There is no requirement that an execution first be issued and returned unsatisfied.
(b)  The party requesting a garnishment shall file a request in an individual case or by a master request covering more than one case asking the court to issue an order of garnishment.  The request shall designate whether the order of garnishment is to be issued to attach earnings or to attach other property of the judgment debtor.  If such party seeks to attach earnings of the judgment debtor to enforce (1) an order of any court for the support of any person, (2) an order of any court of bankruptcy under chapter XIII of the federal bankruptcy act or (3) a debt due for any state or federal tax, the direction of the party shall so indicate.  No bond is required for an order of garnishment issued after judgment. 

Comment

This is similar to K.S.A. 61-2004 except under the new section a judgment creditor can request a garnishment be issued in one or several cases with one request.  This is to facilitate electronic filing and to cut down on the amount of paper filed with the clerk.

5.  Order of garnishment - other than earnings.  This section shall apply if the garnishment is to attach property other than earnings of the judgment debtor. 
(a) The order of garnishment shall be substantially in compliance with the forms set forth in the rules to be adopted hereunder by the supreme court.
(b)  The order of garnishment and the appropriate form for the garnishee's answer shall be served on the garnishee in the same manner as process is to be served pursuant to article 3 of this chapter, except that the garnishee may be served by any means provided under article 3 at the garnishee's business or office location and this shall be considered proper service.  Two copies of the answer form shall be served if the garnishment order is not served electronically.  If the order is served prior to a judgment, the order shall also be served on the judgment debtor, if the judgment debtor can be found, except that the order shall not be served on the judgment debtor until after service has been made on the garnishee.  Failure to serve the judgment debtor shall not relieve the garnishee from liability under the order.
(c)  The order of garnishment shall have the effect of attaching (1) all property, funds, credits or other indebtedness belonging to or owing the judgment debtor, other than earnings, which is in the possession or under the control of the garnishee, and all such credits and indebtedness due from the garnishee to the judgment debtor at the time of service of the order; and (2) all such personal property coming into the possession or control of the garnishee and belonging to the judgment debtor, and all such credits and indebtedness becoming due to the judgment debtor between the time the order is served on the garnishee and the time the garnishee makes the answer of the garnishee.  Where the garnishee is an executor or administrator of an estate in which the judgment debtor is or may become a legatee or distributee thereof, the order of garnishment shall have the effect of attaching and creating a first and prior lien upon any property or funds of such estate to which the judgment debtor is entitled upon distribution of the estate, and such garnishee shall be prohibited from paying over to the judgment debtor any of such property or funds until so ordered by the court from which the order of garnishment was issued. 
(d)  The garnishee may, without prior agreement, withhold and retain to defray the garnishee's costs, an administrative fee of $10 for each order of garnishment that attaches funds, credits or indebtedness. Such administrative fee shall be in addition to the amount required to be withheld under the order for garnishment, except that if the amount required to be withheld under the order for garnishment is greater than the amount of the funds, credits or indebtedness held by the garnishee, the fee shall be deducted from the amount withheld. 

Comment

This is derived in part from K.S.A. 61-2005.  Non-wage and wage garnishments are covered under separate sections because they are treated in a slightly different manner.

Garnishment orders can be served in the same manner as summons can under Article 3.  Garnishees should readily support service by electronic mail and fax as they are already using these forms of communication in their business.  This section also allows service on the garnishee at the garnishee's business office which is not always allowed under current law.

6.  Garnishment of funds held by financial institution.
(a) The written direction of a party seeking an order of garnishment attaching funds, credits or indebtedness held by a bank, savings and loan association, credit union or finance company shall state the amount to be withheld, which shall be 110% of the amount of the judgment creditor's claim, in the case of prejudgment garnishment, or 110% of the amount of the current balance due under the judgment, in the case of postjudgment garnishment.  The garnishee may, without prior agreement, withhold and retain to defray the garnishee's costs, an administrative fee of $10 for each order of garnishment that attaches funds, credits or indebtedness. Such administrative fee shall be in addition to the amount required to be withheld under the order for garnishment, except that if the amount required to be withheld under the order for garnishment is greater than the amount of the funds, credits or indebtedness held by a bank, savings and loan association, credit union or finance company, the fee shall be deducted from the amount withheld.
(b)  All orders of garnishment issued in this state for the purpose of attaching funds, credits or indebtedness held by a bank, savings and loan association, credit union or finance company shall include the judgment debtor's address and tax identification number, if known, and shall specify the amount of funds, credits or indebtedness to be withheld by the garnishee, which shall be 110% of the amount of the judgment creditor's claim or 110% of the amount of the current balance due under the judgment, as stated in the written direction of the party seeking the order.
(c)  The forms provided by law for an order of garnishment attaching funds, credits or indebtedness held by a bank, savings and loan association, credit union or finance company shall include the following statement: 
"If you hold any funds, credits or indebtedness belonging to or owing the judgment debtor, the amount to be withheld by you pursuant to this order of garnishment is not to exceed $______________________________."
 (amount stated in direction)
(d) (1)  The forms provided by law for the answer to an order of garnishment attaching funds, credits or indebtedness held by a bank, savings and loan association, credit union or finance company shall include the following statement: 
"The amount of the funds, credits or indebtedness belonging to or  owing the judgment debtor  which I shall hold  shall not exceed  $_______________________."
(amount stated in order)
(2)  The answer shall further include information that such account is owned in joint tenancy with one or more individuals who are not subject to the garnishment, if applicable. 
(e)  If an order of garnishment attaches funds, credits or indebtedness held by a bank, savings and loan association, credit union or finance company and the garnishee holds funds or credits or is indebted to the judgment debtor in two or more accounts, the garnishee may withhold payment of the amount attached from any one or more of such accounts. 
(f)  If an order of garnishment attaches funds, credits or indebtedness held by a bank, savings and loan association, credit union or finance company and the garnishee holds funds or credits or is indebted to the judgment debtor in an account which judgment debtor owns in joint tenancy with one or more individuals who are not subject to the garnishment, the garnishee shall withhold the entire amount sought by the garnishment.  Neither the garnishor nor the garnishee shall be liable to the joint owners if the ownership of the funds is later proven not to be judgment debtor's. 
(g)  No party shall seek an order of garnishment attaching funds, credits or indebtedness held by a bank, savings and loan association, savings bank, credit union or finance company except on good faith belief of the party seeking garnishment that the party to be served with the garnishment order has, or will have, assets of the judgment debtor. Except as provided further, not more than two garnishments shall be issued by a party seeking an order of garnishment applicable to the same claim or claims and against the same judgment debtor in any 30-day period. A judge may order an exception to this subsection in any case in which the party seeking the garnishment shall in person or by attorney: (1) Certify that the garnishment is not for the purpose of harassment of the debtor, and (2) state facts demonstrating to the satisfaction of the judge that there is reason to believe that the garnishee has property or credits of the debtor which are not exempt from execution. 

Comment

Bank garnishments will be streamlined.  The answer goes directly to the judgment creditor.  (See section 9.)  In response, the judgment creditor sends the bank a direction to pay.  The bank then makes payment direct to the judgment creditor.   (See section 12.)  The clerk is taken out of the loop.  The percentage of a bank account tied up by a garnishment is reduced from 150% of the judgment balance under current law to 110%.

7.  Order of Garnishment - earnings.  This section shall apply if the garnishment is to attach earnings of the judgment debtor.
(a) The order of garnishment shall be substantially in compliance with the forms set forth in the rules to be adopted hereunder by the supreme court.
(b)  The order of garnishment and the appropriate form for the garnishee's answer shall be served on the garnishee in the same manner as process is to be served pursuant to article 3 of this chapter, except that the garnishee may be served by any means provided under article 3 at the garnishee's business or office location and this shall be considered proper service.  Two copies of the answer form shall be served if the garnishment order is not served electronically.  (c)  The order of garnishment shall have the effect of attaching the nonexempt portion of the judgment debtor's earnings for all pay periods which end while the order is in effect.  The order shall remain in effect until either of the following occur, whichever is sooner:
(1) the judgment is paid; or
(2) the garnishment is released.
Nonexempt earnings are earnings which are not exempt from wage garnishment pursuant to K.S.A. 60-2310 and amendments thereto.  Computation of the nonexempt portion of the judgment debtor's wages for the pay period or periods covered by the order shall be made in accordance with the directions accompanying the garnishee's answer form, and a written explanation of the garnishee's computations shall be furnished to the judgment debtor with each paycheck from which earnings are withheld pursuant to the order of garnishment.  The order of garnishment shall also constitute an order of the court directing the garnishee to pay to the judgment creditor all earnings which are to be withheld by the garnishee under the order of garnishment as more particularly provided in the answer of garnishee.
(d)  Administrative fee. From income due the judgment debtor, the garnishee may withhold and retain to defray the garnishee's costs, an administrative fee of $10 for each pay period for which income is withheld, not to exceed $20 for each 30 day period for which income is withheld, whichever is less. Such administrative fee shall be in addition to the amount required to be withheld under the order for garnishment.  If the addition of this fee causes the total amount withheld to exceed the restrictions imposed by subsection (b) of K.S.A. 60-2310, and amendments thereto, the fee shall be deducted from the amount withheld. 

Comment

Wage garnishments will be continuing and will remain in effect until the judgment is paid or the garnishment is released, whichever occurs sooner.   This will greatly reduce the number of garnishments filed.

8.  Notice to judgment debtor.  Immediately following the time the order of garnishment is served on the garnishee and before the answer of garnishee is made, the garnishee shall send a notice to the judgment debtor in any reasonable manner, notifying the judgment debtor:
(1) that a garnishment order has been issued against the judgment debtor and the effect of such order;
(2) of the judgment debtor's right to assert any claim of exemption allowed under the law with respect to a garnishment against property other than earnings or of the judgment debtor's right to object to the calculation of exempt and nonexempt earnings with respect to a garnishment against the earnings of the debtor; and
(3) of the judgment debtor's right to a hearing on such claim or objection.
The notice shall be substantially in compliance with the form set forth in the rules to be adopted hereunder by the supreme court, and shall contain a description of the exemptions that are applicable to garnishments and the procedure by which the judgment debtor can assert any claim of exemption.  A copy of the notice form shall be served on the garnishee with the order of garnishment.  If the garnishee does not have possession of any property, funds, credits, indebtedness, or wages belonging to or owing the judgment debtor, the garnishee does not need to send the notice to the judgment debtor.

Comment

Kansas law was amended effective July 1, 1999, to provide for notice to the defendant in case of garnishment (wage and non-wage) by Chapter 131 (SB 306) 1999 Session Laws.  Current law provides that the notice is to be sent to the defendant by the clerk after a garnishee's answer is filed.  The new section provides that the notice will be sent by the garnishee immediately after the order is served and before the answer is made.

9.  Answer of garnishee - other than earnings.  This section shall apply if the garnishment is to attach property other than earnings of the judgment debtor. 
(a)  The answer of garnishee shall be substantially in compliance with the forms set forth in the rules to be adopted hereunder by the supreme court.
(b)  Within 10 days after service upon a garnishee of an order of garnishment the garnishee shall complete the answer in accordance with the instructions accompanying the answer form stating the facts with respect to the demands of the order and send the completed answer to the judgment creditor and judgment debtor at the addresses listed on the answer form.  The answer shall be supported by unsworn declaration in the manner set forth on the answer form. 

Comment

K.S.A. 61-2006 governs the answer now.  Under the new section the answer will not be filed with the clerk but instead when completed will be sent by the garnishee to the judgment creditor and judgment debtor.  This will further reduce the amount of paper filed with the clerk.

10.  Answer of garnishee - earnings.  This section shall apply if the garnishment is to attach earnings of the judgment debtor. 
(a)  The answer of garnishee shall be substantially in compliance with the forms set forth in the rules to be adopted hereunder by the supreme court.
(b)  Within 15 days following the end of each month, the garnishee shall complete the answer in accordance with the instructions accompanying the answer form for all pay periods ending during the month and send the completed answer to the judgment creditor(s) and judgment debtor at the addresses listed on the answer form.  The garnishee shall designate on the answer in the space provided on the answer form the name and case number for each judgment creditor who has a garnishment order in effect for the same debtor at the end of each month and the amount that is due each judgment creditor under the garnishment in accordance with the instructions accompanying the answer form.  Only one answer needs to be completed for each judgment debtor by the garnishee and the garnishee make duplicate the completed answer in any manner the garnishee desires for distribution to the judgment creditor(s) and judgment debtor.  The answer shall be supported by unsworn declaration in the manner set forth on the answer form.
(c)  If there are other liens against the judgment debtor's earnings which by law have priority over garnishments, the garnishee shall so indicate on the answer.  In such event, the garnishment shall remain in effect but no earnings of the debtor shall be withheld under the garnishment order unless and until all of the other liens having priority are released or satisfied or the earnings being withheld under all of such liens are less than the amount which is exempt under K.S.A. 60-2310.

Comment

The garnishee will prepare an answer on the 15th day of each month covering wages withheld during the prior month.  If more than one garnishment is served on an employer against the same judgment debtor, all judgment creditors will share pro-rata in the funds withheld.  The answer will not be filed with the clerk but will be sent directly by the garnishee to the judgment creditor and debtor.   This will further reduce the amount of paper filed with the clerk.

11.  Reply and hearing.
(a) No later than 10 days after the garnishee makes the answer and sends it to the judgment creditor and judgment debtor, the judgment creditor or judgment debtor, or both, may file a reply disputing any statement in the answer of garnishee.  A copy of the reply shall be sent by the party filing same to the other party, to any other judgment creditors affected and to the garnishee.  The party filing the reply shall notify the court and schedule a hearing on the reply to be held within 30 days after filing of the reply.
(b)  At the hearing, the court shall determine and rule on all issues related to the reply.  The burden of proof shall be upon the party filing the reply to disprove the statements of the answer, except that the garnishee shall have the burden of proving offsets or indebtedness claimed to be due from the judgment debtor to the garnishee, or liens asserted by the garnishee against personal property of the judgment debtor.  The provisions of K.S.A. 60-719 relating to offsets claimed by the garnishee shall be applicable to lawsuits filed pursuant to this chapter.

Comment

This is similar to K.S.A. 61-2006 & 2007.

12.  Direction for payment - other than earnings.  If the garnishment is to attach property other than earnings of the judgment debtor, after 10 days following receipt of the answer of garnishee by the judgment creditor, and no reply to the answer has been filed, the judgment creditor shall direct the garnishee to pay to the judgment creditor such amount that the garnishee is holding as indicated by the answer, or such lesser amount if the circumstances warrant.  If the garnishee is holding property other than money, the judgment creditor shall direct the garnishee to deliver the property to the judgment creditor.  If through garnishment, the claim is overpaid to the judgment creditor, the judgment creditor shall promptly refund to the judgment debtor any such overpayment.

Comment

This replaces the pay-in order which is not really covered under existing law.  Instead of obtaining an order, the judgment creditor simply sends a written direction to pay the garnishee.  Payment is to be made directly to the judgment creditor rather than first going to the clerk.  This will eliminate a great deal of paper and the need for the clerk to handle a great deal of money now handled by most clerks.  The subcommitte was convinced that the clerk does not need to keep track of payments made on judgments.  Most judgments are paid voluntarily directly from the debtor to the creditor with no record of payment kept by the clerk.

13.  Payment of earnings withheld by garnishee.  This section shall apply if the garnishment is to attach earnings of the judgment debtor.  If no reply is made to the answer of garnishee within 10 days following the date the garnishee has completed the answer, the garnishee shall promptly thereafter pay the earnings withheld as indicated on the answer to all judgment creditors designated on the answer in the amount due each as indicated on the answer, unless the garnishee receives prior to such payment an order of the court to the contrary.  If any judgment creditor receives more than they are entitled to, that judgment creditor shall promptly pay the excess amount pro-rata to the other judgment creditors designated on the answer, or if no such other judgments creditors are designated, the judgment creditor shall promptly pay the excess amount to the judgment debtor.

Comment

Payment due under a wage garnishment will automatically be sent by the garnishee to all judgment creditors entitled thereto each month without the need for a pay-in order.  See the comment to section 12.

14.  Failure of garnishee to answer.  If the garnishee fails to answer within the time and manner specified in the order of garnishment, the judgment creditor may file a motion and shall send a copy of the motion to the garnishee and the judgment debtor in the manner allowed under article 2 of this chapter.  At the hearing on the motion, the court may grant judgment against the garnishee for the amount of the judgment creditor's judgment or claim against the judgment debtor or for such other amount as the court deems reasonable and proper, and for the expenses and attorney fees of the judgment creditor.  If the claim of the plaintiff has not been reduced to judgment, the liability of the garnishee shall be limited to the judgment ultimately rendered against the judgment debtor.

Comment

This is covered in part under K.S.A. 61-2006.  The new section will allow the court to award judgment for an amount other than the amount of the judgment and for attorney fees and expenses.

15.  Failure of garnishee to pay.  If after the time the garnishee is to make payment of funds or property held under a garnishment, the garnishee fails or refuses to pay or deliver property to the judgment creditor, the judgment creditor may file a motion and shall send a copy of the motion to the garnishee and the judgment debtor in the manner allowed under article 2 of this chapter.  At the hearing on the motion, the court may find the garnishee in contempt and punish the garnishee by a fine or imprisonment in the county jail or both, or may enter judgment against the garnishee for such amount as the court deems reasonable and proper, including the expenses and attorney fees of the judgment creditor.

Comment

This is not covered under present law.  This section gives the court a number of remedies which may be imposed.

16.  Miscellaneous garnishment provisions.
(a)  The provisions of K.S.A. 60-721 shall be applicable to lawsuits filed pursuant to this chapter. 
(b)  The provisions of K.S.A. 60-722 shall be applicable to lawsuits filed pursuant to this chapter. 
(c)  The provisions of K.S.A. 60-723 and amendments thereto shall be applicable to lawsuits filed pursuant to this chapter. 
(d)  The provisions of K.S.A. 60-724 shall be applicable to lawsuits filed pursuant to this chapter. 

Comment

These are presently covered by K.S.A. 61-2009 and 2010.