Pre-Judgement Garnishing Orders:
A pre-judgement garnishing order is an extraordinary remedy that can get money paid into court before a trial, and helps insure that the plaintiff will not end up with a paper judgement against a defendant who has no assets or funds. A plaintiff may apply to the court for a pre-judgement garnishing order immediately after filing their notice of civil claim, and before serving the defendant and thereby alerting them to the lawsuit.
If the garnishing order is granted, the parties named in the order who owe money to the defendant must instead pay those funds into court. The person upon whom the order is served is referred to as the “garnishee”. The funds are then held until the court makes an order regarding who gets the funds – the plaintiff or the defendant. The result is that the plaintiff can secure part of their claim early on, before the defendant even knows that they are being sued. This element of surprise helps to prevent the defendant from dissipating or hiding their funds once they know about the lawsuit.
Pre-judgement garnishment is an unusual remedy, because even though the plaintiff has not yet proven their case, they are able to garnish funds owed to the defendant. Because of the invasive nature of this remedy, there are strict requirements in order to qualify for a pre-judgement garnishing order. If these requirements are not met, the order is often refused or, if granted, may be set aside upon the application of the defendant. In order to obtain a pre-judgement garnishing order, the following criteria must be present:
1: the claim must be for a debt or liquidated amount: Debt is generally the more common claim, where funds have been advanced or a party owes money pursuant to a contract. A liquidated amount usually arises where the parties have inserted language into a contract that specifies the amount of the damages in the event that one party breaks the contract.
2: the plaintiff must deduct all just discounts: The courts have held this to mean that the plaintiff must deduct the amount of any claim of the defendant which, if ultimately accepted at trial, would establish that a sum was owed from the plaintiff to the defendant. In essence the plaintiff must make allowance for all potential claims of set off, or counterclaims of the defendant.
3: the plaintiff must know the identity of someone who owes money to the defendant: This is usually a bank at which the defendant holds an account. For bank accounts you need to know the specific branch at which the account is located. You can garnish anyone who owes money to the defendant, including employers – although there is a limit to the amount of wages that you can garnish. The funds must be actually owed at the time the order is served upon the garnishee, and so to garnish anything other than a bank account, your timing will likely need to be impeccable in order to serve your garnishing order on the garnishee after the debt has become due, but before it has been paid to the defendant.
The largest risk is usually that you will pursue pre-judgement garnishment and end up not getting enough to have made the garnishment proceedings worth it. If the defendant has no money in their bank account, or if the garnishee does not in fact owe money to the defendant, then there is nothing for the garnishing order to seize.
The second risk of pre-judgement garnishment is that the defendant can apply to have the order set aside and the funds returned. Courts have held that, due to the invasive nature of pre-judgement garnishment proceedings, there must be meticulous compliance with the procedural requirements. In particular, the affidavit of the party who seeks the garnishing order must provide all the information for the registrar to approve the order. Since the application is without notice, the applicant must make full and frank disclosure in their affidavit.
Despite the onerous requirements to obtain a pre-judgement garnishing order, this type of order can be a valuable tool in your civil collection matter. Having funds paid into court will provide you with some peace of mind knowing that if you obtain a judgement, you should at least receive the amount of the funds in court. Garnishing a debtor’s bank account also demonstrates that you are taking the matter seriously, and having funds paid into court can motivate the debtor to make a reasonable proposal to satisfy the debt.