Attachment and Pre-Judgment Garnishment in Ohio

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Introduction   

    A creditor that seeks to collect his or her judgment in Ohio has several remedies, the most common being garnishment of personal earnings or bank accounts, foreclosure on a certificate of judgment lien, and a sheriff’s execution and sale of the judgment debtor’s personal property.  But what if a creditor has not yet obtained a judgment, and believes that the debtor will dispose of assets and be “judgment proof” by the time the creditor obtains a judgment? 

      The Ohio Revised Code (‘R.C.”) does provide creditors with pre-judgment remedies to prevent debtors from disposing of money or other real or personal property before the creditor takes judgment.  This article will discuss two of those remedies, “attachment,” which is a Court ordered seizure of the debtor’s property that is in the debtor’s possession, and pre-judgment “garnishment,” which is Court-ordered seizure of the debtor’s property that is in the possession of a person other than the debtor or the creditor.[1] 

      Generally speaking, “attachment” refers to the seizure of property in the possession of the debtor, while “garnishment” refers to seizure of the debtor’s property that is in the possession of another person. 

      A judgment creditor’s seizure of the debtor’s property in the possession of a third person, for example, the defendant’s accrued wages in the hands of his or her employer or the debtor’s funds in a bank account, is sometimes referred to as “attachment,” but a better term is “post-judgment garnishment,” to distinguish the remedy from attachment.[2]

Attachment

Preliminary Considerations

Bases for Obtaining an Order of Attachment

      
    The remedy of attachment of a debtor’s property in his or her possession is generally utilized before judgment, but attachment is also available to creditors that have obtained a judgment other than for the recovery of money or real property.[3]  A creditor, however, cannot attach the debtor’s personal earnings before obtaining judgment.[4] 
      
    To attach a debtor’s property, other than personal earnings, a creditor must follow the attachment procedure set forth in R.C. Chapter 2715.[5]  A creditor cannot obtain an order of attachment unless the creditor satisfies at least one of the grounds for attachment set forth in Section 2715.01(A) of the Ohio Revised Code:
 

      (1) The defendant, or one of several defendants in the action, is a foreign corporation, unless the foreign corporation is registered with the Ohio Secretary of State as a foreign corporation or otherwise exempt from attachment under Ohio law[6];

      (2) The defendant is not a resident of Ohio;

      (3) The defendant has “absconded with the intent to defraud creditors”;

      (4) The defendant has left the county of his or her residence to avoid the service of a summons;

      (5) The defendant so conceals himself or herself self that a summons cannot be served upon the defendant;

      (6) The defendant is about to remove property, in whole or part, out of the jurisdiction of the court in which the creditor filed its complaint, with the intent to defraud creditors;

      (7) The defendant is about to convert property, in whole or part, into money, for the purpose of placing it beyond the reach of creditors;

      (8) The defendant has property or causes of action, which the defendant conceals;

      (9) The defendant has assigned, removed, disposed of, or is about to dispose of, property, in whole or part, with the intent to defraud creditors;[7]

      (10) The defendant has fraudulently or criminally contracted the debt, or incurred the obligations, for which suit is about to be or has been brought;

      (11) The claim is for work or labor.[8]

      If the only ground for the attachment is that the defendant is a foreign corporation or is not a resident of Ohio, the Court cannot enter an order of attachment unless the plaintiff’s claim is for a debt or demand based on a contract, a judgment, or a decree, or for causing property damage, death, or personal injury by the defendant’s negligent or wrongful act.[9] 

      Under the following circumstances, a creditor may obtain an order of attachment of property even before the debt is due from the debtor:

      (1) the debtor has sold or otherwise transferred or disposed of his property with the fraudulent intent to cheat or defraud his or her creditors, or to hinder or delay them in the collection of their debts;

      (2) the debtor is about to make a sale or other transfer or disposition of his or her property with the fraudulent intent to cheat or defraud his or her creditors, or to hinder or delay them in the collection of their debts; or

      (3) the debtor is about to remove his or her property, or a material part of it, with the intent or to the effect of cheating or defrauding his or her creditors, or of hindering or delaying them in the collection of their debts.[10]

      To obtain an order of attachment before the subject debt is due, the plaintiff creditor must file a complaint, an affidavit, and a motion for attachment, and follow the other procedures for obtaining an order of attachment, all as set forth in Sections 2715.01 to 2715.49 of the Ohio Revised Code, as described below.[11] 

Where to File the Complaint

      
    Generally, if the creditor’s claim is based on a written or oral contract and the creditor desires to file suit in an Ohio state court, the creditor must file the complaint in (1) the county in which the defendant resides, (2) the county in which the defendant has its principal place of business, (3) a county in which the defendant conducted activity that gave rise to the creditor’s claim, (4) a county in which the property, or any part of the property, sought to be attached is situated, if that property is real property or tangible personal property, or (5) the county in which all or part of the creditor’s claim arose.[12] 
     
     If, at the time the creditor files the complaint for breach of contract, the defendant is a non-resident of Ohio (including non-resident business entities), or is a resident of Ohio but absent from the state, the creditor can file the complaint in the county of the creditor’s residence if the subject of the complaint arose from the defendant’s (1) transacting any business in Ohio, (2) contracting to supply services or goods in Ohio, or (3) having an interest in, using, or possessing real property in Ohio.[13]
      
    Under clause (B)(12) of Rule 3 of the Ohio Rules of Civil Procedure, if the plaintiff creditor, or his or her claim, does not fit into any of the categories indicated in the previous paragraph [or any other category listed in clauses (B)(1) through (B)(10) of Rule 3], the plaintiff can file the complaint in the Ohio county in which the plaintiff resides, has his or her principal place of business, or regularly and systematically conducts business activity.[14]  
      
    Finally, under clause (B)(13) of Rule 3 of the Ohio Rules of Civil Procedure, if the plaintiff creditor, or his or her claim, does not fit into any of the categories listed in clauses (B)(1) to (B)(11) of Rule 3, the plaintiff can file his or her complaint in a county in which (a) the debtor has property or debts owing to the defendant and subject to attachment or garnishment, or (b) in a county in which the debtor has appointed an agent to receive service of process or in which an agent has been appointed by operation of law.[15]
      
    If the plaintiff creditor has a basis for federal subject matter jurisdiction with respect to his or her complaint, the plaintiff can file the complaint and the motion for attachment in the appropriate venue of the United States District Court.[16]

 

Motion for Attachment and Affidavit 

      A creditor can file the motion for attachment of property at any time after the creditor/plaintiff files a complaint for a money judgment.[17]  The motion must be accompanied by an affidavit, signed by the plaintiff, or the plaintiff’s agent or attorney, setting forth:

      (1) the nature and amount of the plaintiff’s claim, and, if the claim is based on a written instrument, for example, a promissory note, the plaintiff must attach a copy of that instrument;

      (2) the facts that support at least one of the eleven grounds for attachment set forth in section 2715.01 of the Ohio Revised Code;[18]

      (3) a description of the property to be attached and its approximate value, if known;

      (4) the location of that property, to the plaintiff’s best knowledge;

      (5) the use to which the defendant has put the property, and that the property is not exempt from attachment or execution, to the plaintiff’s best knowledge after reasonable investigation; and

      (6) the name of the person in possession of the property, if the property is not in the debtor/defendant’s possession.[19] 

Notice to Defendant

      Along with filing the complaint, the motion for attachment, and the supporting affidavit, the plaintiff creditor must also file with the clerk of courts a praecipe directing the clerk to serve upon the defendant debtor a notice of the filing of the motion for attachment.  The court, however, may issue an order of attachment without notice or a hearing if the plaintiff satisfies the conditions set forth in Section 2715.045 of the Ohio Revised Code (see below).

      Upon the filing of the motion for attachment, the clerk will cause a summons (if not previously served on the defendant), a copy of the complaint, duplicate originals of the notice, and a copy of the affidavit, to be served upon the defendant in accordance with the Ohio Rules of Civil Procedure for the service of a summons,[20] but if the plaintiff seeks service by publication under Civ.R. 4.4, the number of weeks for publication (otherwise generally once a week for six consecutive weeks) may be reduced by the court “to the extent appropriate.”[21]   The motion for attachment and the accompanying documents must be served on the defendant at least seven (7) business days before the scheduled hearing date, as indicated in the notice of the motion for attachment.[22]

      The notice of the filing of the motion for attachment must be substantially in the form set forth in Section 2715.041(A) of the Ohio Revised Code.  The notice: (a) informs the defendant of the filing of the motion for attachment; (b) includes the case caption and case number, and the name and address of the plaintiff; (c) lists the property that is exempt from attachment; (d) informs the defendant that wages cannot be attached before judgment; and (e) notifies the defendant that he or she may request a hearing if the defendant disputes the plaintiff’s claim or believes that the property is exempt from attachment.  

Deciding the Motion

Hearing on the Motion for Attachment

      The notice of the motion also includes the date, time, and place of a scheduled hearing, and informs the defendant that he or she can retain possession of the property, until a final judgment on the plaintiff’s complaint, by posting a bond in the amount specified in the notice.[23] 

      For the court to conduct the scheduled hearing, however, on the debtor’s objections to the attachment, the defendant must file a request for the hearing, either in the form attached to the notice of the motion for attachment, or in a substantially similar form.  The defendant must file the request for hearing no later than the end of the fifth (5th) business day following the defendant’s receipt of the notice of the motion.[24]  The defendant has the option, but is not required, to state his or her objections to the motion for attachment in the request for hearing. 
 

      The clerk of courts must schedule the hearing on the motion for attachment for a date within twenty (20) days following the filing of the motion.[25]  If the defendant fails to file a request for a hearing within five (5) business days following service of the motion for attachment, in accordance with Section 2715.04 of the Ohio Revised Code, the court may nevertheless grant the defendant a continuance of the scheduled hearing if the defendant, before the scheduled hearing date, establishes a “reasonable justification” for his or her failure to request a hearing.[26]  If the court grants the continuance, the continued hearing on the motion for attachment must be scheduled for a date “as soon as practicable” after the grant of the continuance, but not later than the fifth (5th) business day following the originally-scheduled hearing date, unless the plaintiff consents to a later date.[27]

      At the hearing on the attachment motion, the defendant can offer all available defenses to the motion, whether or not the defendant included any defense in the request for hearing.  The hearing on the motion for attachment (whether on the originally-scheduled hearing date or on a continued hearing date) is limited to a consideration of whether there is “probable cause to support the motion,” based on the affidavit and any evidence presented at the hearing, and whether any of the defendant’s property is exempt from execution under R.C. Chapter 2329, and therefore also exempt from attachment.[28] 

Order of Attachment With Notice But Without a Hearing

      If the defendant has not requested a hearing on the motion for attachment within the time set forth in R.C. 2715.041, and the Court has not continued the scheduled hearing date, the Court will cancel the scheduled hearing and grant the plaintiff’s motion for attachment[29], if the Court finds all of the following:

    1. The notice, the motion for attachment, and the affidavit were properly served on the defendant;
    2. The defendant did not request a hearing within the required five (5)-day period following service of the motion and the Court did not grant a continuance of the hearing under R.C. 2715.042(B);
    3. The defendant (or other person in possession of the property) did not post a bond sufficient to retain possession of the property; and
    4. On the basis of the affidavit filed by the plaintiff, the Court finds that there is probable cause to support the motion for attachment.[30]

Order of Attachment Without Prior Notice and Without a Hearing

      R.C. 2715.045 permits a plaintiff creditor to obtain an order of attachment without prior notice to the defendant and without a hearing.  To enter that ex parte order, the court must find, based on the plaintiff’s motion for attachment, the affidavit filed with the motion, and any other relevant evidence that the court might wish to consider, that (A) there is probable cause to support the motion, and (B) the plaintiff will suffer “irreparable injury” if the order is delayed until the defendant has been given the opportunity for a hearing.[31]

      To make a finding that the plaintiff will suffer irreparable injury, the court must find the existence of either of the following circumstances:

      “(1) There is present danger that the property will be immediately disposed of, concealed, or placed beyond the jurisdiction of the court.[32]

      (2) The value of the property will be impaired substantially if the issuance of an order of attachment is delayed.”[33]

      If the court issues the order of attachment based on a finding that there is probable cause to support the motion and that the plaintiff will suffer irreparable injury if the order is delayed, the plaintiff must post a bond with the clerk (see below for the requirements with respect to the bond).  The court will then issue the order of attachment, directing the levying officer to attach the non-exempt property of the defendant.  The levy on the defendant’s property is discussed below.

      If successful at the hearing, the plaintiff must also file with the Clerk: (a) the order of attachment, (b) a praecipe instructing the Clerk to issue to the defendant copies of the motion for attachment, the affidavit, and the order of attachment, and a notice that the order of attachment was issued and that the defendant has a right to a hearing on the matter.[34] 

      The defendant must file the request for hearing within five (5) business days following service of the notice on the defendant.  The defendant has the option, but is not required, to state his or her objections to the attachment in the request for hearing.  If the defendant requests a hearing within the five (5)-business day period, the hearing will be held within three (3) business days after delivery of the request for hearing to the clerk.  The defendant will receive notice of the date, time, and place of the hearing.  The notice also states that the defendant can retain possession of the property subject to the attachment order by posting a bond, in the amount stated in the notice, with the clerk by the end of the fifth (5th) business day after the defendant received the notice.[35]

      If the defendant requests a hearing to dispute the attachment, the court will conduct the hearing to determine whether there is probable cause to support the motion for attachment.  If the court finds that there was not probable cause, the court will order the levying officer to return the property to the defendant without any requirement that the defendant post a bond.[36]

Appeal from an Order Attaching, or Refusing to Attach, the Defendant’s Property

      The order granting or overruling a motion for an order of attachment, if entered after a full evidentiary hearing, is a final appealable order, and an aggrieved party can appeal the order to the Ohio court of appeals having review power over the trial court that entered the order.[37]  The aggrieved party may file a notice of appeal within thirty (30) days of the entry of the order on the motion for attachment, or within thirty days of the judgment or order that disposed of the complaint and any other claims in the action.[38] 

Plaintiff’s Bond

      In most cases, even if the plaintiff obtains an order of attachment, the “levying officer” (see below) cannot take possession of the property subject to the order until the plaintiff has posted a bond or deposited other security with the clerk of courts.  If the plaintiff posts a bond, the bond must be for twice the approximate value of the property subject to the attachment order.[39] 

      The purpose of the bond or cash deposit is to ensure that, if the court enters judgment against the plaintiff in the underlying action (1) the plaintiff will return the attached property to the defendant or pay the assessed value of the property, at the defendant’s option, (2) the defendant will recover his or her damages resulting from the taking and detention of the property, or injury to the property, and (3) the costs of the action will be paid.[40] 

      Rather than post a bond, the plaintiff may deposit with the clerk twice the approximate value of the property subject to the attachment.  If the plaintiff does not know the approximate value of the property or does not know the identity of the property, and wishes to deposit cash rather than post a bond, the deposit must be for twice the amount of the plaintiff’s claim.[41]

      Interestingly, if the basis for the attachment is that the defendant is a foreign corporation or is not a resident of Ohio, the Court may issue the order of attachment without requiring the plaintiff to post a bond or cash deposit.[42]

      The defendant may object to the sufficiency of the surety that supplied the plaintiff’s bond by filing an exception with the court within ten (10) days after the posting of the surety’s bond.[43]  The burden of proof then falls on the surety to demonstrate that the surety is sufficient to fulfill the obligations of the bond.  While the question of the sufficiency of the surety is before the court, the levying officer may move forward with attaching the defendant’s property under R.C. 2715.09 (see below), but cannot take any further action with respect to the attached property until the Court determines that the Plaintiff’s surety is sufficient or orders the plaintiff to replace the surety.[44]

      Before judgment on the complaint in an action in which the court has issued an order of attachment, and after the defendant has given notice to the plaintiff, the defendant may move for additional security to be posted by the plaintiff.  Upon the filing of that motion, if the defendant proves that the plaintiff’s surety has removed from Ohio or is not sufficient for the amount required for the bond, the court has the option of vacating the order of attachment and ordering the levying officer to return the attached property to the defendant, unless the plaintiff posts sufficient surety within the time fixed by the court.[45]

Executing the Order of Attachment

Initial Service of the Order of Attachment

      An order of attachment is addressed and delivered to the “levying officer.”[46]  For purposes of the Ohio attachment statute, “levying officer” means the sheriff, another authorized law enforcement officer, or a bailiff who is ordered by the court to take possession of property under an order of attachment.[47]  An order of attachment is comprehensive, and requires the levying officer to attach the

“lands, tenements, goods, chattels, stocks or interest in stocks, rights, credits, money, and effects of the defendant, in such officer’s county, not exempt by law from being applied to the payment of plaintiff’s claim [for example, the defendant’s exempt personal earnings], or so much thereof as will satisfy it, to be stated in the order as in the affidavit, and the costs of the action, not exceeding one hundred dollars.”[48] 

      Unless the Court issued the order of attachment under R.C. 2715.045 (without prior notice and without a hearing), the levying officer must serve the order of attachment on the defendant in accordance with Civ.R. 5, governing service of pleadings and other papers after the service of the complaint.[49] 

      Civ.R. 5 requires service of an order, such as an order of attachment, upon the defendant’s attorney if the defendant is already represented in the action, unless the court orders service directly on the defendant.  If the defendant is not represented in the action, the levying officer must serve the order of attachment directly on the defendant.  Civ.R. 5 allows the levying officer to serve the order of attachment by delivering a copy on the person to be served, transmitting the order to the office of the person to be served by facsimile transmission, mailing the order to the last known address of the person to be served, or, if no address is known, leaving the order of attachment with the clerk of courts.[50] 

Attaching the Defendant’s Property

      After service of the order of attachment upon the defendant or his or her attorney, as applicable, the levying officer must execute on the order “without delay.”[51] The levying officer must go where the defendant’s property is located, and the levying officer or his agent, for example, an appraiser, must make an inventory and appraisal of all of the defendant’s property.  The levying officer or his agent, as applicable, must indicate that inventory and appraisal in an affidavit that the levying officer will file with the court, with the order of attachment.[52] 

      When attaching the defendant’s real property, the levying officer must leave a copy of the order of attachment with the occupant of the real property or, if there is no occupant, the levying officer must post a copy of the order in a conspicuous place on the property.  The levying officer can attach personal property, if reachable, by taking the property into his or her custody and keeping it in a secure place subject to further order of the court.  After attaching personal property, the levying officer must deliver a copy of the order of attachment to the defendant or, if the officer cannot find the defendant, the officer must leave a copy of the order of attachment at the place where he or she attached the personal property.  On the other hand, if removal of the defendant’s property would be unreasonably expensive, the levying officer can take possession of the property by posting a “notice of possession” conspicuously on that property.[53]

      When and how a levying officer may enter a building to take possession of the defendant’s personal property depends on whether the building is an “occupied dwelling unit.”[54]  A structure used in whole or in part as a household by one person, or as a common household by two or more persons, qualifies as an “occupied dwelling unit,” but only if a person is present, or is likely to be present, in the structure.  A structure is not considered an “occupied dwelling unit” at any time if, after reasonable efforts to personally contact any person who may be present in the structure at that time, the levying officer reasonably believes that no person is present in the structure at that time.[55]

      A reasonable reading of the Ohio attachment statute leads to the conclusion that a levying officer is without authority to take into possession personal property at any time that the structure housing the property is an “occupied dwelling unit.”  If the defendant’s property is contained in a structure other than an occupied dwelling unit, to take possession of that property, the levying officer must first use reasonable efforts to obtain voluntary admittance to the structure.  If those efforts fail, and unless the order of attachment specifies otherwise, the levying office may use any lawful means to enter the structure.  If the levying officer entered the building without first getting permission to enter, the levying officer must file with the court, on the next business day after the entry, an affidavit setting forth the circumstances of the entry and the reasons the levying officer was unable to obtain voluntary admittance.[56]

Receivership

      The court, upon the plaintiff’s motion and for good cause shown, may appoint a receiver to take possession and control of attached property until the court renders a judgment on the plaintiff’s complaint.[57]  The court-appointed receiver must take an oath and post a bond before taking possession of the attached property.[58]  If the Court does not appoint a receiver upon the plaintiff’s motion, the levying officer will have the powers and authority, with respect to the attached property, as if the court had appointed the levying officer as a receiver.[59] 

      The receiver must take possession of, and collect, all of the defendant’s “notes, due bills, books of account, accounts, and other evidences of debt” that were attached by the levying officer.  The receiver’s collection of the indebtedness evidenced by those instruments is subject to defenses available to the obligor on the respective instrument.[60]  If any attached property is perishable or expensive to keep and maintain, the court may order the receiver to sell that property through the sheriff at public sale as if upon a writ of execution after judgment.[61]  The sheriff then holds the proceeds of the sale until the court renders a final judgment on the plaintiff’s complaint.

Bonding Off or Discharging an Order of Attachment

Defendant’s Bond

      A defendant whose property is subject to an order of attachment, or another person on the defendant’s behalf, may discharge the attachment and retain or regain possession of that property by posting a bond for twice the approximate value of the attached property or twice the amount of plaintiff’s claim, as applicable.[62]  If, on the other hand, the plaintiff’s complaint seeks a judgment based on the defendant’s negligent or wrongful act that caused death or personal injury, the court will set the amount of the defendant’s bond to discharge the attachment.[63]

      The surety on the defendant’s bond may execute the bond in the presence of the levying officer before the levying officer has filed the return on the attachment with the clerk of courts.  After the levying officer has filed the return, the surety on the defendant’s bond must execute the bond in the presence of the clerk.  Either the levying officer, or the clerk, as applicable, must approve the surety as a condition to the discharge of the attachment.[64] 

      Rather than post a bond to discharge an attachment, a defendant may deposit with the clerk cash in the amount of the approximate value of the attached property, or, if the plaintiff posted a bond, cash in the approximate value of the attached property or the amount of the plaintiff’s bond, whichever is less.[65] 

      Under R.C. 2715.43, the plaintiff may object to the surety that executed the defendant’s bond, in the same manner that the defendant may object to the surety that executed the plaintiff’s bond, as discussed above.
 

Motion to Discharge the Attachment       

    In addition to discharging an attachment by posting a bond or depositing cash with the clerk of courts, a defendant may discharge all, or a portion, of property from an order of attachment by filing a motion with the court after reasonable notice to the plaintiff, under R.C. 2715.44.  The defendant must file the motion to discharge before the Court renders a judgment on the complaint.  The Court must hear and decide the motion “promptly.”[66] 
      
    A motion to discharge an attachment is separate from the defendant’s right to oppose the motion for an order of attachment at a hearing under R.C. 2715.043.  Generally, to discharge an order of attachment under R.C. 2715.44 after the Court has already held a full evidentiary hearing on the plaintiff’s motion for attachment, the defendant must provide new grounds supporting a discharge or evidentiary material proving that the plaintiff wrongfully obtained the discharge.[67] 
      
    If the court overrules a motion to discharge an order of attachment, the defendant may file a notice of appeal within thirty (30) days of the entry of that order, or within thirty (30) days of the judgment or order that disposes of the complaint and any other claims in the action.[68] 
      
    If the court grants the motion to discharge an attachment, the court will set a date, no later than the thirtieth (30th) day following the entry of the order discharging the attachment, in which the plaintiff, or another party aggrieved by the discharge order, may file a notice of appeal.  Despite the discharge of the attachment, the levying officer retains possession of the attached property following the discharge order.[69]  The plaintiff or other party filing the notice of appeal must post a bond in the amount of double the appraised value of the property that was attached, to compensate the defendant for all damages suffered as a result of the appeal.[70]

 

Judgment on the Complaint

      As mentioned above, if the plaintiff filed a complaint and a motion for attachment seeking to attach the defendant’s property before the debt is due, and the court overrules the motion, the court must dismiss the complaint without prejudice.[71]  In all other cases involving a motion for attachment before judgment, the case will proceed to a deposition of the complaint, after the court has determined the motion for attachment, as in any other civil action. 

       If the court renders judgment for the defendant on the complaint, the court will immediately discharge any order of attachment previously entered in the case.[72]  On the other hand, if the court grants a judgment to the plaintiff on the complaint, the judgment is satisfied as follows: (1) the levying officer pays to the plaintiff the proceeds of any sale of perishable property that was already conducted by the levying officer, (2) under a court order, the levying officer sells so much of the personal property, and the real property, subject to the order of attachment, as is necessary to satisfy the judgment, as if upon a writ of execution, and (3) the clerk will issue a writ of execution to the levying officer to satisfy any balance of the judgment from the defendant’s remaining property not exempt from execution.[73] 

Pre-Judgment Garnishment

Preliminary Considerations

      As mentioned above, if a creditor seeks attachment of the debtor’s property in Ohio before judgment, and the property is in the possession or under the control of a third person, the creditor’s remedy is to obtain an order of attachment directed to the third person, called the “garnishee.”  Examples of property subject to pre-judgment garnishment include the debtor’s deposit account with a financial institution, the debtor’s brokerage account, the debtor’s property in a safe deposit account, or any other property for which the defendant could file suit against the garnishee.[74] 

      On the other hand, the wages of an Ohio debtor are not subject to pre-judgment garnishment, and can be collected by a creditor only through the post-judgment garnishment procedure set forth in R.C. Chapter 2716.[75] 

Motion and Order of Attachment Against a Garnishee

      To obtain a pre-judgment attachment directed to a garnishee, a creditor must follow the procedure for obtaining an attachment, as set forth above, including the filing of a complaint, a motion for attachment, and an affidavit attesting to the existence of at least one of the factors set forth in R.C. 2715.01.  The complaint should plead that a named third person, the garnishee, has possession of the defendant’s property.  In addition, the affidavit accompanying the motion must attest that the plaintiff has good reason to believe, and does believe, that the garnishee has possession of some or all of the defendant’s property, other than personal earnings.[76]
 
      If the plaintiff seeks to attach the defendant’s property in the possession of a garnishee, the defendant debtor is entitled to all of the notice and due process requirements of R.C. Chapter 2715, as if the defendant were in possession of the property.[77] 
 
      Any court of common pleas in Ohio has jurisdiction to issue an order of attachment to any person subject to service of process in Ohio.  If the garnishee resides in the county of the common pleas court that issued the attachment order, the levying officer of that court will serve the order on the garnishee under R.C. 2705.05, as in the case of service of the order on the defendant, as explained above.  If the garnishee does not reside in the county of the common pleas court that issued the order, the sheriff of the county where the defendant resides may serve the order on the garnishee under R.C. 2705.05, or the garnishee may be personally served with the order of attachment under Civ.R. 4.1.[78]
 
      If the creditor obtains an order of attachment issued by a municipal court, or a county court, located in Ohio, the order may be served on a garnishee who resides in the county in which the court is located, or on a garnishee that resides in a county that is contiguous to the county in which the court is located, in accordance with R.C. 2705.05.  If the garnishee does not reside within the territorial jurisdiction of the municipal court or county court that issued the order of attachment, the sheriff of the county in which the garnishee resides may serve the order of attachment on the garnishee under R.C. 2705.05, or the garnishee may be personally served with the order of attachment under Civ.R. 4.1.[79]
 

Examination of Garnishee

      If the court grants the plaintiff’s motion for attachment against a garnishee, the levying officer will then attempt to take possession of the defendant’s property from the garnishee.  If the levying officer is unable to do so, he or she must leave a copy of the order of attachment with the garnishee, and a written notice ordering the garnishee to appear in open court and be examined.[80]  The order of attachment affects the defendant’s property and credits in the garnishee’s possession or under his or her control, at the time of service of the notice and thereafter.[81]

      The plaintiff’s examination of the garnishee, under the written notice served on the garnishee, is conducted before the clerk of the court of common pleas of the garnishee’s county of residence.  If the garnishee is not a resident of Ohio, the examination is conducted before the clerk of the county where the garnishee was served with the notice or where the attachment proceeding is pending.[82]  The garnishee may be held in contempt if he or she fails to appear for the examination.[83] 
 
      The plaintiff may examine the garnishee as to (A) the amount owed by the garnishee to the defendant, other than personal earnings, whether due or not, and (B) the nature and extent of the defendant’s property in the garnishee’s possession or under his or her control.[84]  If the garnishee is a corporation, the representative of the corporation must also disclose, in the examination, whether the corporation holds any stock for the defendant’s benefit.[85]
 
      If the examination reveals that the garnishee is in possession of any property owned by the defendant, or is indebted to the defendant, the garnishee must deliver the property, or pay money for the indebtedness, into court.[86]  The garnishee’s obligation to deliver the property to the defendant, or to pay the debt to the defendant, is satisfied to the extent of the garnishee’s delivery of the property, or payment of funds, to the court.[87]
 

Garnishee’s Bond

      If the defendant posts a bond or cash in accordance with R.C. 2715.26 (see discussion above), a garnishee holding the defendant’s property is discharged of any obligation to turn over that property to the levying officer.  In addition, under R.C. 2715.32, the court that issued an order of attachment against a garnishee may permit the garnishee to retain the defendant’s property, or refrain from paying money into court for a debt that the garnishee owes to the defendant, by executing a bond in favor of the plaintiff.  Under that Section, the court has the authority to set the amount of the bond.

Action Against Garnishee

      Under R.C. 2715.33, if a court has entered an order of attachment against a garnishee, the plaintiff may bring a separate action against the garnishee, if the garnishee:

      (A) failed to appear for an examination under R.C. 2715.29;

      (B) appeared for the examination but his or her disclosure was not “satisfactory to the plaintiff”; or

      (C) failed to deliver the property, or pay money, in compliance with the order of attachment, without posting a bond under R.C. 2715.32.[88]

      In an action against a garnishee under R.C. 2715.33, the plaintiff may obtain a judgment against the garnishee for the amount of the property, and credits, owed by the garnishee to the defendant.  The court cannot render a final judgment in the plaintiff’s action against the garnishee, however, until the court adjudicating the plaintiff’s complaint against the defendant has rendered a judgment on that complaint.  If the defendant obtains a judgment dismissing the plaintiff’s complaint, the garnishee is discharged, the plaintiff’s action against the garnishee will be dismissed, and the garnishee will recover the costs of that action from the plaintiff.  On the other hand, if the plaintiff obtains a judgment against the defendant on the attachment complaint, the garnishee will be discharged if he or she delivers the attached property or credits, or pays the indebtedness to the defendant, as the court orders.[89]
 
      If the plaintiff brings an action against the garnishee on the basis that the garnishee’s disclosure at the examination was unsatisfactory, the garnishee may recover the costs of the action from the plaintiff, unless the plaintiff proves at trial that the garnishee’s disclosure was incomplete.[90]
 

Conclusion

      Although the remedies of attachment and pre-judgment attachment have strict requirements that must be satisfied by the plaintiff, including the posting of a bond and the plaintiff’s submission to the court of an affidavit attesting to the existence of conditions supporting the attachment, they can be useful tools to prevent the dissipation of the debtor’s assets.  In particular, a creditor with a pre-judgment claim against a foreign corporation that is not registered with the Ohio Secretary of State, but owns property in Ohio, should seriously consider utilizing attachment to prevent the foreign corporation from removing that property from Ohio.
 

Donald E. Miehls, Esq.

Walter & Haverfield LLP

This overview is intended as general information only.  Please note that this information is not legal advice.  The reader should consult an attorney with knowledge in this area of the law to determine how the information applies to any specific situation.

 
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