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CONTINUING GARNISHMENT V. GARNISHING AMOUNTS DUE

By Stephen J. Muhonen, Creditor’s Rights / Collections Attorney, Racine Olson, PLLP

I had an interesting collections issue arise the other day that is worth discussing.  A self-represented judgment creditor was attempting to garnish a judgment debtor’s wages.  The judgment creditor had repeatedly served a Writ of Continuing Garnishment on the judgment debtor’s employer, just to have the writ returned each time, unsatisfied.  The judgment creditor was naturally frustrated because they had expended a considerable amount of emotional energy, time, effort and expense in the repeated attempts to collect upon the judgment; all for naught.

As I listened and the related facts unfolded, the reason as to why the Writ of Continuing Garnishment was not being accepted became apparent.  There were two problems.  One (1), the judgment debtor was not an employee, but rather, an independent contractor.  Two (2), because the judgment debtor was an independent contractor, a Writ of Continuous Garnishment was the improper mechanism to garnish the amounts due to the independent contractor, from the independent contractor’s creditor.

Idaho Code §11-201 allows money to be seized through a writ of execution.  Idaho Codes §11-206 and §11-701 describe what earnings and disposable earnings are and Idaho Codes §11-207 and §11-712 detail the limitations on the amounts of earnings and disposable earnings that can be garnished.  Idaho Code §11-701 and §11-704 describe that a continuous garnishment that is served upon an employer of a judgment debtor “shall continue in force and effect until the judgment is satisfied.”  Stated otherwise, the wages and salary, etc. of an employee, owed by the employer, can be continuously garnished within certain limitations, until the underlying judgment is satisfied.  This continuing garnishment limitation is specific to the employer/employee relationship.

Distinguished from the employer/employee relationship is the employer/independent contractor relationship.  Generally speaking, an independent contractor is one who is hired to perform a specific task or undertake a certain project but left to do the assigned work with their own tools and choose the method for accomplishing it.  An independent contractor is not an employee.  Because an independent contractor is not an employee, the amounts due to the independent contractor from the employer are not subject to continuing garnishment.  Rather, those amounts due are subject to a one-time or one-shot garnishment.  Idaho Codes §11-703 and §11-709 allow a judgment creditor to execute upon credits, personal property or debts owing by the employer to the judgment debtor, but this is a one-time execution.  There is no continuing garnishment language in these statutes.  By way of example, if a judgment debtor has a creditor that owes him/her/it money, the judgment creditor can execute upon that debt, essentially saying, “Pay me, not them.”  Sometimes this execution and garnishment can be very difficult to be successful at though because perhaps the amounts due are not yet due and owing as they have not been earned yet by the judgment debtor or perhaps the creditor/employer already paid the independent contractor, meaning the judgment creditor was too late in intercepting the funds.

If you are a creditor seeking assistance in collecting a debt that a debtor is refusing to pay, give Stephen Muhonen at Racine Olson, PLLP, a call at 208-232-6101.  You can also email Steve at steve@racineolson.com.

 

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