questions & answers

Question: My daughter, received garnishment papers from her employer from an apartment she defaulted on. She was never notified of any garnishment by the collection agency; she was never served or summoned to court regarding the debt. Do they have to notify her before obtaining a garnishment?

Answer:  Lets do some definitions first.

1)      Your daughter is the debtor/defendant.  If there is a judgment, she is a "judgment debtor".

2)      The creditor/plaintiff (call him Bank) is now a "judgment creditor".

3)      The Bank probably has an attorney.

4)      Your employer is the "garnishee" and must follow directions from the court.

Yes, notice is required, however the definition of notification may not be what you expect.  Technically, the judgment creditor simply has to prove that your daughter was served (by a registered process server, sheriff, or deputy) with a summons and complaint.  If she was, then the creditor probably obtained a default judgment – it is presumably valid and you will have to prove that service ("notice") did not occur.   

The rules state that an individual must be served personally (hand to hand) or by leaving copies at that individual's dwelling house or usual place of abode with some person of suitable age and discretion.  Some examples I have seen of a "suitable person": a 12 year old boy who answers the door at 2pm after school; a college roommate in a dorm; and a nanny who can speak enough English to carry on a short conversation with a process server.  If the process server thinks your daughter was avoiding service (by not answering the door when her car was in the driveway) then the creditor could have asked the judge for "alternative service" which can be accomplished by sending the lawsuit by registered mail.  The little green slip she signed when she picked up the mail means service was good – if the creditor saved the slip and filed appropriately with the court. 

            Your daughter can object to the garnishment in writing and request a hearing when she receives notice of the garnishment.  A good judgment creditor will appear at a garnishment objection hearing prepared with the proper paperwork – primarily including a copy of the notarized Affidavit of Service.   This is where the Process Server has notated who he served, what they looked like, what name they gave, and the address of service.  A judge will almost always believe a process server's statement that service did occur over a debtor's statement that it did not.  If the judgment creditor cannot prove service occurred, a debtor can have the garnishment thrown out AND entire judgment set aside.  Unfortunately, a garnishment hearing is not the place to challenge any part of the underlying debt.      

Sources: Ariz. R. Civ. P. 4, 4.1, A.R.S. §§12-1598.02, 12-1598.07