Post-judgement Remedies - the significance of the affidavit required to obtain a writ of garnishment
Once a judgment is obtained, and sometimes beforehand, a plaintiff may request a writ of garnishment to satisfy the judgment. In Texas, applications for writ of garnishment are governed by Tex. Civ. Prac & Rem. Code Ann. §§ 63.001 – 63.008 and Rules 657 – 659 of the Texas Rules of Civil Procedure.
Rule 658 sets forth the procedural requirements of an ex parte (proceedings conducted for the benefit of only one party) application for writ of garnishment. Importantly, the rule provides that “[t]he application shall…state the grounds for issuing the writ and the specific facts relied upon by the plaintiff to warrant the required finding by the court…[F]acts may be stated based on information and belief if the grounds of such belief are specifically stated.” Tex. R. Civ. P. 658. Most states provide for a similar procedure. State rules apply to federal proceedings. See Fed. R. Civ. P. 64(a).
Applications for ex parte writs of garnishment are frequently granted based on an affidavit compliant with the applicable rules. Rarely does a court carefully examine these affidavits for compliance with the rules. Counsel typically prepare and file such affidavits on behalf of their clients. While it is advisable to have the client sign such an affidavit, the more important question is whether the affidavit complies with the requirements of the rules. The affidavit should state “grounds” for the issuance of the writ sufficient for the Court to find that issuance is appropriate. If definitive facts are available – e.g., a bank account number or cancelled check – they should be stated in the affidavit. If the “grounds” are on “information and belief,” more is required. The affiant must explain the source of the “information and belief” – e.g., “a cancelled check from a year ago,” or mention of an account in a post-judgment deposition or other discovery.
An improper affidavit risks a motion to quash the writ by the judgment debtor and an award of any consequential damages. Let the affiant beware.