In the process of enforcing a Judgement, debtors sometimes prove elusive and play hard to get, making the pursuit of what's rightfully yours extra difficult. However, there is a simple but strategic move that might just turn the table around – garnishing the debtor's bank account.
Step 1: Locate and Read the Cheque
To garnish the debtor's bank account, your first move is to investigate the account details. Starting by combing through past financial transactions between the creditor and the debtor, particularly those involving cheque payments, can be the game-changer. If the debtor has made any payment by cheque, you can use the cheque as evidence to support your belief that the debtor holds bank account(s) at the financial institution. In case the original cheque is lost, don't worry – your bank can provide transaction records, which will include an image of the cheque.
On the cheque, essential information such as the address of the debtor, the information of the financial institution (name and address), and the bank account information can be found.
The bank account details can be found within the string of numbers at the bottom of the cheque, including the 5-digit transit number which identifies the branch where the account was opened; the 3-digit financial institution code; and the 7 to 12-digit account number which specifies which bank account where the money will be withdrawn from. Please note that the cheque number at the top right corner might also be found at the bottom left corner.
In case where no payment has been made by the debtor, it is crucial to gather as much information about the debtor's financial situation as possible. You should seek legal advice and conduct an Examination in Aid of Execution.
Step 2: Requisition for Garnishment
As per Rule 60.08 (4) of the Rules of Civil Procedure, the creditor shall file a Requisition for Garnishment (Form 60G), a copy of the Judgement, an Affidavit, Notice of Garnishment (Form 60H) and a blank Garnishee's Statement with the registrar.
The Garnishee is a third party that holds property of the debtor that can be used to satisfy the debtor's debt, in this case, is the financial institution holding an account for the debtor.
The information discovered from the cheque becomes the key to prepare the legal documents, such as the name and address of the financial institution, as well as the debtor's bank account information which should be detailed in your Affidavit. You also need to calculate the principal owing amount as well as the post-judgement interest to-date. Check our previous blog post to see how to calculate post-judgement interest.
Two important notes: First, a Notice of Garnishment can only name one debtor and ONE Garnishee. If multiple entities own debt to the debtor, prepare separate Notices of Garnishment to each of the Garnishees. Secondly, the filing should be made where the court proceeding (resulting in the Judgement being enforced) was commenced, as the registrar will forward a copy of the issued Notice of Garnishment to the Sheriff where the debtor resides. You can find the Sheriff's office address and district via thelink here, provided by the WritFiling website.
Upon receiving the issued Notice of Garnishment, serve it with a blank Garnishee's Statement to the Garnishee (the local branch of the financial institution); also serve it with a copy of the Affidavit on the debtor.
Step 3: Issuance of the Garnishment Cheque
The Garnishee is required to pay the funds in the debtor's account to the Sheriff's office within 10 days after being served with the Notice. This payment should be made by a bank draft payable to the Minister of Finance. Once the cheque is cleared, the Sheriff's office will issue the cheque to the creditor or the creditor's counsel.
In some special cases where the debtor's account is jointly owned, the creditor will be notified by the Garnishee and must serve the co-owner a Notice to Co-owner of the Debt along with a copy of the Garnishee's Statement. In these circumstances, the creditor should seek legal advice from a lawyer.
When your debtor plays hard to get, garnishing his or her bank accounts would be the strategic move to go!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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