Tenn. Code § 26-2-216

Current through Acts 2023-2024, ch. 716

Section 26-2-216 - Installment payments to obtain stay of garnishment - Service of garnishment summons

(a)

(1) After any judgment has been rendered in any court and the time to appeal therefrom has elapsed without such an appeal having been made, the judge of the court which rendered the judgment may, either before or after the issuance and service of garnishment, upon written consent of the parties or upon written motion of the judgment debtor, after due notice and after full hearing of such motion, enter an order requiring such judgment debtor to pay to the clerk of the court a certain sum of money weekly, biweekly or monthly to apply upon such judgment. The filing of such motion by the debtor shall stay the issuance, execution or return of any writ of garnishment against wages or salary due the judgment debtor or any other funds belonging to the judgment debtor sought to be substituted to the satisfaction or payment of or upon such judgment during the period that such judgment debtor complies with the order of the court. Such motion of the judgment debtor shall be supported by an affidavit stating the debtor's inability to pay such debt with funds other than those earned by the debtor as wages or salary, or received from other sources in such amounts as to necessitate or make equitable installment payments, the name and address of the debtor's employer, or other source of funds and amount of such wages or salary, and the date of payment thereof.

(2) Notwithstanding subdivision (a)(1), upon written consent of the parties, the hearing of the judgment debtor's motion to pay the judgment in installments may be held on the same date that such judgment is entered.

(3) The judgment debtor may file only one (1) motion to establish payments for each judgment; however, if the motion is denied, or the order establishing payments is not complied with, at the court's discretion for good cause shown, the stay order may be reinstated as provided in § 26-2-217, with the reinstated stay order to affect only pay periods subsequent to the reinstatement.

(4) Notwithstanding subdivision (a)(1), the filing of a motion by a judgment debtor who has admitted the debt and is paying the judgment by agreed installment payments shall not stay the issuance, execution or return of any writ of garnishment against wages or salary due the judgment debtor or any satisfaction or payment of or upon such judgment.

(b)

(1) It is the duty of the sheriff or other officer serving the garnishment summons upon the employer garnishee to:

(A) Obtain a receipt acknowledging service of such summons signed by the employer garnishee, if a person, or signed by an officer, managing agent or designated agent for service of the employer garnishee, if a corporation, company or business entity; or

(B) Sign and return to the court a sworn statement to the effect that the summons was duly served but such employer garnishee or such officer, managing agent or designated agent of the employer garnishee refused to sign a receipt acknowledging service; and

(C) The garnishment summons served by the sheriff shall have attached a notice to the employer that the employer is required to withhold the garnishment amount from the employee's wages, that the employer is required to pay these moneys to the court, and that the employer is liable for failure to withhold from the garnishee's wages and for failure to pay these moneys to the court.

(2) The sheriff or other officer shall serve three (3) copies of the garnishment summons upon the employer garnishee, all of which shall contain a conspicuously typed or printed notice which shall read as follows:

IN THE ____________________ COURT FOR ____________________ COUNTY, TENNESSEE

______________
Plaintiff,	)
vs.	)
___________________	CASE NO. ____________________
Defendant.	)

NOTICE OF JUDGMENT DEBTOR (AND NOTICE TO GARNISHEE)NOTICE TO THE DEBTOR (EMPLOYEE): Your earnings have been subjected to a garnishment which has been served upon your employer. The garnishment creates a lien on a portion of your earnings until the judgment is satisfied, or for six (6) months, whichever occurs first. You have the following rights:

Some of your wages are protected by state and federal law from garnishment. See the notice below to the employer to find out how much of your wages are protected from garnishment.

IF YOUR EMPLOYER IS TAKING TOO MUCH MONEY FROM YOUR WAGES:

You may apply to the court at the clerk's office shown below within twenty (20) days from any improper withholding of your wages for a motion to stop the garnishment. The court clerk identified below shall provide you with a form for making such a motion, or may have supplied a form motion on the back of this notice. You may wish to seek the counsel of a lawyer. If you are unable to afford an attorney, you may be eligible for free legal services to assist you.

PLEASE NOTE: If you file a motion, the court must hear and decide your motion promptly, and in no event later than fourteen (14) days from filing. The clerk will notify you of the time, date, and place of hearing. The court clerk's office can provide you with forms and with information about legal services in your area, but the clerk cannot give you legal advice.

IF THE RIGHT AMOUNT OF MONEY IS BEING TAKEN FROM YOUR WAGES BUT YOU WANT TO GET THE GARNISHMENT STOPPED THROUGH A PAYMENT PLAN:

You may apply to the court for an order suspending further garnishments by the same creditor upon your paying a certain sum of money weekly, biweekly, or monthly, to pay the judgment. If you file this motion, the garnishment of your wages will stop for as long as you make the payments ordered by the court.

The court clerk shall provide you with the necessary forms to make this application, or you may seek the counsel of an attorney. If you are unable to afford an attorney, you may be eligible for free legal services to assist you.

NOTICE TO THE GARNISHEE (EMPLOYER): THE MAXIMUM PART OF THE AGGREGATE DISPOSABLE EARNINGS OF AN INDIVIDUAL FOR ANY WORK WEEK WHICH IS SUBJECTED TO GARNISHMENT MAY NOT EXCEED:

(A) Twenty-five percent (25%) of the garnishee's disposable earnings for that week, minus two dollars and fifty cents ($2.50) for each of the garnishee's dependent children under sixteen (16) years of age who resides in the state as provided in § 26-2-107; or

(B) The amount by which the garnishee's disposable earnings for that week exceed thirty (30) times the federal minimum hourly wage at the time the earnings for any pay period become due and payable, minus two dollars and fifty cents ($2.50) for each of the garnishee's dependent children under sixteen (16) years of age who resides in the state, whichever is less.

"Disposable earnings" means that part of the earnings of an individual remaining after the deduction from those earnings of any amounts required by law to be withheld.

In the case of earnings for a pay period other than a week, the weekly formula must be changed to apply to that pay period so as to exempt an equivalent percentage of disposable earnings. For example, the calculation concerning the federal minimum wage in subsection (b) should be computed as follows: WEEKLY: 30 times the federal minimum hourly wage (fmw) at the time the earnings for any pay period become due and payable; BI-WEEKLY: two (2) times thirty (30) fmw; SEMI-MONTHLY: two and one-sixth (2 1/6) times thirty (30) fmw; and MONTHLY: four and one-third (41/3) times thirty (30) fmw equals the amount to be subtracted from disposable earnings for that pay period.

If the judgment orders alimony and the person in whose favor the judgment was rendered has remarried, the above exemption applies. If the judgment orders the debtor to pay support for the debtor's minor child or children, or alimony and the person in whose favor the alimony judgment was rendered has not remarried, different standards apply under 15 U.S.C. § 1672(b). If the debtor is supporting a spouse or dependent child other than those for whom the order was entered, then fifty percent (50%) of the debtor's disposable earnings may be garnished. If the debtor is not supporting such additional dependents, a maximum of sixty percent (60%) may be garnished. These figures rise to fifty-five percent (55%) and sixty-five percent (65%), respectively, if the support order is for a period more than twelve (12) weeks before the pay period to be garnished.

If the judgment is for state or federal taxes, no disposable earnings are exempt under 15 U.S.C. § 1673(b).

NAME: ____________________ ____________________

(Clerk of Court) (Judgment Debtor)

ADDRESS: ____________________ ____________________

(Provided by Creditor)

____________________ ____________________

____________________ ____________________

TELEPHONE: ____________________

T.C.A. § 26-2-216

Amended by 2018 Tenn. Acts, ch. 597, s 1, eff. 3/23/2018.

Acts 1978, ch. 915, § 35; 1980, ch. 519, § 1; 1980, ch. 596, § 1; T.C.A., § 26-245; Acts 1981, ch. 179, § 1; 1985, ch. 52, §§ 1, 2; 1988, ch. 934, § 15; 1989, ch. 95, § 1; 1989, ch. 404, §§ 1, 2; 1989, ch. 538, § 2; 1990, ch. 789, § 4; 2004, ch. 828, § 1.