UNDERSTANDING
GARNISHMENTS
Government Finance Officers
Association of Louisiana
October 8, 2014
Presented by:
Rick McGimsey &
Lindsey Hunter
What is a garnishment?
 A garnishment is a judicial proceeding
in which a creditor asks the court to
order a third party who is indebted to
the debtor to turn over to the creditor
any of the debtor's property held by that
third party.
Waiver of Immunity
 The State of Louisiana expressly waives any
immunity from suit insofar as the garnishment
of nonexempt portion of wages, salaries,
commissions, or other compensation of public
officials, whether elected or appointed, public
employees, or contractors is concerned, of
itself, its agencies, boards, commissions,
political subdivisions, public corporations, and
municipal corporations. La. R.S. 13:3881(C).
How Does a Garnishment
Commence?
 After getting a money judgment against a defendant, the plaintiff,
i.e., now the judgment or seizing creditor, obtains a writ of fieri
facias (“fifa”) from the court.
 The judgment creditor then petitions the court for garnishment of
the defendant’s wages. Written notice must be sent to judgment
debtor by creditor.
 The judgment creditor asks that the defendant’s employer be cited
as garnishee and answer garnishment interrogatories under oath.
 The judgment creditor shall send to the judgment debtor written
notice of the filing of the garnishment petition by mail or electronic
means. La. C.C.P. art. 2412.
Proper Service for State
Employees: La. C.C.P. art. 2412
Service of garnishment petitions against wages, salaries,
or commissions of employees employed within the
executive branch of state government shall be made
in the following manner:
(1) For employees paid through the statewide uniform
payroll of the division of administration, service shall
be made on said office.
(2) For all other employees not covered by (1), service
shall be made only on the secretary of the
department employing the debtor or on his designee.
Effect of Service
 Employer should begin withholding from date
of service.
 Employer has 15 days from date of service to
prepare and file sworn answers to the
interrogatories.
 Failure to answer under oath treated as failure to
answer
 Examples of interrogatories
 Court must grant leave to amend answer to
interrogatories
3 Options After Petition &
Interrogatories are Served
OPTION ONE: Garnishee files sworn answer & court
issues garnishment judgment. Hearing is not
necessary. Judgment is served on garnishee.
-
180 days to obtain judgment from filing of answer
Judgment for employees paid on commission basis: La.
R.S. 13:3926
Judgment should allow employer to deduct $3/pay
period from non-exempt portion of wages (i.e.,
25% being withheld) to cover costs.
Judgment might allow $15 to be withdrawn from
court for answering if attorney files answer
Option 2: No Answer Filed;
Judgment Pro Confesso

If the garnishee fails to answer timely, the
seizing creditor may move for a judgment
pro confesso, i.e., a judgment against the
garnishee for the amount of the judgment.



Contradictory hearing must be held on motion
Judgment must be rendered after hearing unless
garnishee proves he has no property of debtor
Costs & attorney’s fees associated with motion
awarded to creditor regardless of outcome
Option 3: Rule to TraverseLa. C.C.P. art. 2414
 Creditor may file contradictory rule to
traverse garnishee’s answers
 15 days from date of service of notice of
filing garnishee’s answers
 Creditor must disprove garnishee’s answers
 If answers are filed and creditor fails to
traverse them, any property other than that
admitted in answer is released from seizure.
Remit $$ to Sheriff
 After the garnishee knows the proper amount
to remit, it should send that money to sheriff
each pay period.
 6% commission for constable is permitted by
33:1428(A)(7)(a) to be paid by plaintiff in writ.
Tucker v. Fowler, 95-1649 (La. 2/28/96), 668
So. 2d 718.
 Sheriff gets 6% even if judgment orders funds paid
directly to seizing creditor. Stevens v. Lockett, 528
So. 2d 689 (La. App. 2 Cir. 5/4/1988).
How Much Money Does
Garnishee Withhold?
In every garnishment, “a judgment shall be rendered by the
court of competent jurisdiction in which the garnishment
proceedings may be pending fixing the portion of such
wage, salary, commission, or other compensation as may
be exempt, as provided by law, and providing for the
payment to the seizing creditor of whatever sum for which
judgment may be obtained, out of the portion of such
compensation which is not exempt.” La. R.S. 13:3921(A).
Only 25% of “disposable earnings” may be withheld from each
paycheck.
 Exception for child or spousal support orders
 Exception for IRS lien
 30 x federal minimum wage exception
Disposable Earnings
 Disposable earnings are the part of the
earnings of any individual remaining after the
deduction of any amounts required by law to
be withheld and those amounts that are
reasonable and are being deducted in the
usual course of business at the time the
garnishment is served upon the employer.
 25% of disposable earnings may be garnished
 Employee must always be left with weekly pay of
30x federal minimum wage (30 X $7.25 = $217.50)
Example 1: Weekly Wages
Creditor Garnishment
DISPOS. EARN.
GROSS PAY
- Soc. Sec/Medicare
- Federal Income Tax
- State Income Tax
- Medical Insurance
- Life Insurance
- Retirement
- Credit Union
$900
- 50
- 140
- 30
- 25
- 10
- 25
$ 620
25% Garnishment
Employee keeps
NET PAY
- 155
$465
-50
$ 570
_________
Example 2: Weekly Wages
Creditor Garnishment
DISPOS. EARN.
 Gross Pay







Soc. Sec./Medicare
Federal Income Tax
State Income Tax
Medical Insurance
Life Insurance
Retirement
Credit Union
25% Garnishment
Employee keeps??
NET PAY
$350
-20
-30
-10
-25
-10
-25
$230
- 57.50
$172.50**
-50
$180
(continued)
Example Two, cont’d.
DISPOS. EARN.
25% Garnishment
Employee keeps??
$230
- 57.5
$172.50**
NET PAY
$180
**But federal law requires that employee always keep
$217.50 per week (30 x federal minimum wage)
DISPOS. EARN.
Employee keeps
Garnishment payment
$ 230
-217.50
$ 12.50/wk
NET PAY
$180
Are Disability Payments
Earnings?
 Disability payments ARE earnings if
made pursuant to a contract of health,
accident or life insurance. In this case,
they are EXEMPT.
 Disability payments simply made by
employer and not pursuant to insurance
policy are NOT EXEMPT.
Are Workers’ Compensation
Payments Earnings?
 Workers’ Compensation payments are exempt
from all claims of creditors and from levy or
execution or attachment or garnishment,
except under a judgment for alimony in favor of
a wife, or an ascendant or descendant. La.
R.S. 23:1205.
 LA courts have interpreted this provision as
applying to benefits due, not benefits received.
Are Retirement Benefits
Earnings?
 La. R.S. 11:405: An annuity, retirement
allowance or benefit, or refund of
contributions, or any optional benefit paid
to any person . . . is exempt from
garnishment.
 Exception: retirement benefits may be
garnished to pay support judgments. La.
R.S. 11:292.
Satisfaction of
Garnishment
 Garnishment continues until entire
debt, interest, attorney’s fees, and
sheriff’s or constable’s commissions
are paid in full.
 Garnishee should make sure to
obtain satisfaction of judgment.
Garnishment FAQ:
Multiple Garnishments
 Generally, garnishments are paid in the
order they are served on garnishee, not
by date of garnishment judgment.
 La. R.S. 13:1925(C): Debt to garnishee
cannot take preference over enforcement of
child support obligation.
 Debt to employer can sometimes be
treated as a prior garnishment
Multiple Garnishments,
cont’d.
 Child support orders, no matter when entered
or served, take priority over every garnishment
and levy except a federal tax levy served
before entry of a child support order. The key
date is that of the support order, not the
income withholding order.
 Two or more support orders (either child or
spousal) will be prorated up to the legal limits.
Garnishment FAQ:
Employee Rights
 Money paid out on garnishments counts towards the
minimum wage requirements under FLSA.
 Employer may not terminate an employee because of a
garnishment. Termination is permitted only if
employee actually withholds under three or more
garnishments, support orders, or levies within a twoyear period.
 Employer cannot deny employment to a prospective
employer because of garnishments.
Garnishment FAQ:
Employee Bankruptcy
 The mere filing of bankruptcy automatically
stays any garnishment proceeding against the
bankrupt debtor or “property of the estate.”
 The bankruptcy court will enter an order
instructing the employer to stop withholdings.
 Withholdings for child or spousal support may
continue against property that is not property of
the estate.
Bankruptcy, cont’d.
 Chapter 7: Earnings after the filing of the
employee’s bankruptcy petition are not
property of the bankruptcy estate. Thus,
withholding for child or spousal support can
continue.
 Chapter 13: Earnings after the filing of
employee’s bankruptcy petition are property of
the bankruptcy estate. Thus, the withholding of
child or spousal support cannot continue
unless and until bankruptcy court issues an
order lifting the stay.
Garnishment FAQ:
Failure of Garnishee to
Withhold or Remit
 If the judgment creditor suspects he has not been paid
in accordance with the garnishment judgment, it will file
a rule for an accounting. When creditor does so and
establishes he has not been paid in accordance with
judgment, burden of proof shifts to the employer to
explain its failure. Johnson v. Fulwood, 398 So. 2d
1151 (La. App. 4th Cir. 1981).
 Court may order garnishee to pay the amounts that
should have been withheld from date of garnishment
order, and to continue garnishment payments until debt
is satisfied. Bank One v. Anima Home Health, 950
So.2d 886.
FAQ: Wrongful
Garnishment
 A judgment creditor who wrongfully garnishes
property is answerable in damages to the
owner of the property wrongfully seized.
 Compensable items of damages in such cases
include damages for loss of use of the funds
seized, inconvenience, mental distress,
embarrassment, and injury to reputation.
Homemakers Loan & Consumer Discount Co.
v. Arthur, 333 So. 2d 686 (La. Ct. App. 4th Cir.
1976).
Garnishment FAQ:
Garnishment for Community
Debts
 To the extent that a debtor's community property can
be seized in satisfaction of a creditor's judgment, the
debtor's spouse's earnings and other property also
may be garnished, under appropriate circumstances,
based upon the presumption, which is rebuttable, that
earnings and property of both spouse are community.
 The nonparty spouse is arguably entitled to specific
notice before execution of the judgment against
community property. See, e.g., Jones v. Flowers, 547
U.S. 220, 126 S. Ct. 1708, 1721, 164 L. Ed. 2d 415
(2006), Rayne State Bank and Trust Co. v. Fruge, 546
So. 2d 637 (La. Ct. App. 3d Cir. 1989), writ denied, 551
So. 2d 1319 (La. 1989).
Garnishment FAQ:
Wages of Independent
Contractor
 Money owed to an independent contractor may not be
“wages” within the meaning of La. R.S. 13:3921.
Consequently, the garnishing of money owed to an
independent contractor is not continuing and is
effective only as to money owed at the moment of
service on the garnishee. Tower Credit, Inc. v.
Carpenter, 825 So. 2d 1125 (La. 2002).
 The distinction between employee and independent
contractor status is a factual determination to be
decided on a case-by-case basis.
Helpful Legal References
 La. R.S. 13:3881 (exemptions from seizure and disposable
earnings)
 La. R.S. 13:3921-3928 (garnishment procedures)
 La. C.C.P. arts. 2411-2417 (more garnishment procedures)
 La. Children’s Code arts. 1301-1308 (Uniform Interstate Family
Support Act)
 La. R.S. 23:1205 (workers comp. exempt)
 La. R.S. 23:731 (prohibiting termination of employees for
garnishments)
 La. R.S. 47:1570 (tax levies)
 La. R.S. 46:236.3 (income assignment for support orders)
 La. R.S. 22: 646 (disability payments and garnishment)
Contact Information
Lindsey Hunter
Civil Division
Post Office Box 94005
Baton Rouge, Louisiana 70804
HunterL@ag.state.la.us
Phone: (225) 326-6083