Rule 64 refers to a rule in the Federal Rules of Civil Procedure that governs the process of seizing property to satisfy a judgment. It provides procedures for obtaining an order of attachment or garnishment to seize property from the losing party in a lawsuit to ensure payment of the judgment. Understanding the requirements and procedures of Rule 64 is important for plaintiffs seeking to enforce judgments and recover damages awarded by the court.
What is the Purpose of Rule 64?
The main purpose of Rule 64 is to provide plaintiffs with a mechanism to enforce money judgments by seizing and securing assets of the defendant. It allows the plaintiff to request the court to issue an order of attachment to seize specified property of the defendant before judgment to ensure assets are not dissipated. It also allows the plaintiff to obtain a writ of garnishment after judgment to seize money or assets belonging to the defendant that are in the possession of a third party.
Rule 64 serves to prevent defendants from hiding or transferring assets in order to avoid paying a judgment. By allowing seizure of property and assets, it makes it more likely the plaintiff can execute the judgment and recover the amount owed by the defendant.
Key Functions of Rule 64
- Allows prejudgment seizure of defendant’s property in certain circumstances
- Sets forth procedures for plaintiffs to obtain writs of attachment
- Permits garnishment of wages and bank accounts post-judgment
- Requires notice be provided to defendant regarding any seizure
- Protects certain exempt property from being seized
- Provides mechanism for defendant to challenge improper seizures
By providing for these attachment and garnishment remedies, Rule 64 gives plaintiffs important tools for enforcing judgments and makes it more difficult for losing defendants to avoid paying damages owed under the court’s order.
What are the Requirements for Attachment Under Rule 64?
For a plaintiff to obtain an order of attachment under Rule 64 prior to judgment, several requirements must be met:
- The plaintiff must establish the probable validity of the underlying claim against the defendant
- The application for attachment must demonstrate that the defendant is actively hiding, concealing, or transferring property with intent to defraud creditors or avoid payment
- The plaintiff must post a bond to protect the defendant against wrongful attachment
- Notice must be provided to the defendant of the attachment order
- The court must hold a prompt post-attachment hearing at the defendant’s request
Additionally, the property sought to be attached must be described with particularity and can only include property that is subject to attachment under the law of the state where the court is located. The plaintiff bears the burden of showing that the attachment requirements are satisfied.
Requirements for Attachment Vary By State
While Rule 64 establishes the baseline federal requirements, plaintiffs must also comply with the specific attachment laws and procedures of the state where the federal district court is located. These rules vary, but often include things like:
- Specific grounds required for prejudgment attachment
- Restrictions on the types or value of property that can be attached
- Notice periods following attachment
- Form and contents required for attachment application
- Standards of proof for granting a writ of attachment
So in addition to meeting the Rule 64 standards, plaintiffs must be careful to follow all applicable state law requirements when seeking an order of attachment over a defendant’s property.
What Property is Subject to Attachment Under Rule 64?
Rule 64 allows attachment of any property belonging to the defendant that is subject to attachment under the law of the state where the court is located. Typically, most states permit attachment of the following types of property:
- Real estate and land
- Tangible personal property (vehicles, equipment, inventory, etc.)
- Bank accounts and securities accounts
- Wages and earnings
- Accounts receivable and money owed to defendant
- Business revenue and profits
However, there are some limits on what can be attached. For example, most states exempt certain personal assets and minimum amounts in bank accounts. Additionally, attachment of real property usually only secures the judgment and does not transfer title. The rules regarding what property can be attached vary widely and plaintiffs should be sure to comply with state law.
Process for Attaching Personal Property
To attach tangible personal property, the court appoints a sheriff or marshal to seize the property after issuing the writ of attachment. The officer takes temporary possession of the property and holds it pending resolution of the case. For intangible property like bank accounts, the officer serves a copy of the writ on the third party holding the property, such as a bank, which then freezes assets up to the amount specified in the writ.
How are Wages Garnished Under Rule 64?
Under Rule 64, the most common method of collecting judgments from individuals is by garnishing the defendant’s wages and earnings. This involves serving a writ of garnishment on the defendant’s employer, requiring them to withhold sums from the defendant’s paycheck and forward those amounts to the plaintiff.
Federal statutes set the maximum amount of disposable earnings that can be garnished in any workweek, regardless of the number of garnishment orders received by an employer. State law may further limit wage garnishment percentages. The federal limits are:
- 25% of disposable earnings if defendant supports another spouse or child
- 30% of disposable earnings if defendant does not support another spouse or child
- Disposable earnings excludes taxes, social security, and other deductions
To garnish wages, the plaintiff must serve a writ of garnishment on the defendant’s employer after obtaining a money judgment. The employer must then withhold the prescribed amounts from salary or wages and pay those sums over to the plaintiff. This seizure of earnings continues until the judgment is satisfied.
Example Wage Garnishment Calculation
| Gross Pay | $1,000 |
|---|---|
| Taxes Withheld | – $250 |
| Social Security Deduction | – $75 |
| Medicare Deduction | – $25 |
| Disposable Income | = $650 |
| 25% Garnishment (with dependents) | x 25% |
| Amount Garnished | = $162.50 |
In this example, $162.50 could be garnished each week from the defendant’s paycheck to collect on the judgment.
What Notice is Required for Attachment and Garnishment?
Rule 64 requires that notice be given to a defendant prior to issuance of any order of attachment. This allows the defendant to have an opportunity to be heard and object to attachment. The plaintiff must also provide prompt notice to the defendant after execution of any attachment, garnishment, or seizure of property.
For garnishment of wages, employers are required to promptly notify the employee that a garnishment order has been received. Notice must specify details including:
- The amount to be withheld from wages
- The garnishment order’s duration (usually until judgment is satisfied)
- Liability and protections for the employer under law
Providing accurate, timely notice to defendants regarding attachment and garnishment is a critical due process requirement under Rule 64.
Methods of Notice
Notice of attachment proceedings can typically be accomplished by:
- Personal service on defendant
- Certified mail to defendant’s residence or business
- Delivery to an adult occupant at defendant’s residence or business
- Service on defendant’s attorney if represented
Plaintiff should use most reliable method possible and file proof of service with the court.
How Can a Defendant Challenge Attachment or Garnishment?
Rule 64 provides several remedies that allow a defendant to challenge wrongful attachment or garnishment by a plaintiff, including:
- Pre-attachment hearing – Defendant may request hearing prior to attachment ruling
- Post-attachment hearing – Defendant has right to prompt hearing after attachment
- Dissolution of writ – Defendant can file motion to dissolve writ of attachment
- Exemption claims – Defendant can claim property is exempt from attachment
- Wrongful attachment action – Defendant can sue plaintiff for wrongful attachment
To challenge a garnishment order, the defendant must file a written objection and request a hearing before the court. The burden is then on the plaintiff to prove the garnishment is proper.
Grounds for Challenging Attachment
In contesting attachment and garnishment, the defendant may argue:
- Plaintiff failed to follow proper procedures
- Writ includes excessive amount of defendant’s property or wages
- Plaintiff’s claim against defendant is not valid
- Attachment seized exempt property
- Hardship from attachment outweighs plaintiff’s interest
Defendants should act promptly in challenging any improper seizure of assets or garnishment of wages under Rule 64.
What Are Exemptions from Attachment and Garnishment?
Certain types of property are exempt from attachment and garnishment under federal and state law. Common exemptions include:
- Minimum amount of equity in primary residence
- Motor vehicle up to a certain value
- Basic household furnishings and appliances
- Clothing and personal effects
- Tools, books, and equipment used in trade or profession
- Personal injury and wrongful death awards
- Government benefits such as Social Security
- Minimum bank account balances
- Minimum amount of disposable earnings
Exemption laws are designed to prevent defendants from being completely deprived of basic necessities and means of earning income. Plaintiffs cannot attach or garnish exempt property in enforcing judgments.
Claiming Exemptions
To take advantage of exemptions, the defendant must file a claim of exemptions with the court, describing the specific property claimed as exempt. This must be done promptly after receiving notice of attachment or garnishment. If no exemption claim is made, the property may be subject to seizure and sale.
The claim of exemptions shifts the burden to the plaintiff to prove the property is not exempt. If the plaintiff does not object, the exemption claim will be upheld without further proceedings.
Conclusion
Rule 64 serves the important function of allowing plaintiffs to locate assets and seize property when needed to satisfy court judgments. But it balances this remedy with notice requirements and exemption protections for defendants. Understanding the detailed procedures for attachment, garnishment, and claiming exemptions under federal and state law is key for any party involved in executing or challenging an order under Rule 64.
With the ability to attach both pre-judgment and post-judgment, along with garnishment of wages, Rule 64 gives plaintiffs power to aggressively enforce money judgments. But exemptions and hearing protections aim to prevent enforcement that deprives defendants of necessary income and property. Both sides would be wise to study the requirements carefully before pursuing or objecting to any seizure of assets under this rule.
Learn more about Rule 64 with the help of experienced counsel, who can pursue or defend against a proceeding under this rule in federal court. Counsel can ensure the procedures and substantive rights under federal and state law are properly followed.