Massachusetts Writ of Garnishment

Introduction

Key Things to Know

1. 1

   Massachusetts gives a judgment creditor a trustee summons rather than a writ of garnishment. It is the paper served on a third party holding the debtor's money, called the trustee, and under General Laws chapter 246, section 20 whatever was intrusted to or deposited with that trustee is attached and held to respond to the final judgment, as if it had been attached on an original writ of attachment.

2. 2

   A justice has to sign before the summons exists. Clause Eighth of section 32 allows a wage attachment only where it is made in an action brought upon a judgment, only as to money not exempt under chapter 235, section 34, and only where it is authorized in advance by written permission endorsed on the complaint and signed by a justice, associate justice or special justice of that court.

3. 3

   The debtor gets ten days' warning by law. Application to the justice may be made only after ten days' written notice has been delivered or sent by registered mail, return receipt requested, naming the plaintiff, the court, the nature of the claim and the time and place of the application, unless the justice finds that complying would unreasonably delay and hinder justice.

4. 4

   The ceiling is measured on gross pay, which is the quiet trap. Section 28 makes the trustee reserve as exempt the greater of 85 per cent of the debtor's gross wages or 50 times the greater of the federal or the Massachusetts hourly minimum wage for each week. At the Commonwealth's $15.00 rate under chapter 151, section 1 that second leg is $750 a week, so a summons reaches the lesser of 15 per cent of gross wages or the excess over $750, and nothing at or below $750.

5. 5

   Your own paper has to print the protected number. Section 28 requires every writ of attachment to contain a statement of the amount exempted and a direction to the trustee to pay that amount over, and Rule 4.2(b) adds that the summons must also name the justice who entered the approval order and the date of it.

6. 6

   Two clocks start at once. Rule 4.2(c) gives the creditor 30 days after the date of the approval order to get the summons served, and section 10 then gives the trustee 20 days after service to file an answer, under oath or signed under the penalties of perjury, disclosing plainly, fully and particularly what it held when served.

7. 7

   A trustee that stays silent is exposed to the whole debt, not a share of it. Section 18 defaults a trustee that neglects to appear and answer and adjudges it trustee, and section 46 then renders judgment against it for the whole amount remaining unsatisfied on the judgment against the debtor, out of its own goods and estate under section 45.

Massachusetts Requirements for Writ of Garnishment

• An Action Brought Upon the Judgment

  Wages are reachable only in an action brought upon a judgment, so the creditor files a fresh complaint reciting the judgment rather than asking the clerk for process on the old docket (G.L. c. 246, s. 32, clause Eighth). The upside of that framing: because the complaint states the action is upon a judgment, section 1 excuses the surety bond of not less than $250 that other trustee process plaintiffs must post on claims over $1,000.

• Motion for Approval, Endorsed by a Justice

  Rule 4.2(c) allows the action to be commenced only by filing the complaint together with a motion for approval of attachment on trustee process, supported by affidavit, and bars service of any summons until the court approves an attachment for a specified amount. For wages, clause Eighth adds that the permission must be written, endorsed on the complaint, and signed by a justice, associate justice or special justice. The clerk cannot supply this.

• Ten Days Written Notice to the Debtor First

  Application to the justice may be made only after ten days' written notice has been delivered or sent by registered mail, return receipt requested, to the debtor at the last known address, place of business or employment, naming the plaintiff, the court, the nature of the claim and the time and place of the application, and telling the debtor of the right to be present and be heard. The justice may shorten or dispense with that notice only on finding that compliance would unreasonably delay and hinder justice.

• Court, Venue and the Fee a Filer Pays

  District Court or Boston Municipal Court department: $180 plus the $15 surcharge, so $195. Superior Court department: $240 plus a $20 security fee for each civil case plus the $15 surcharge, so $275. Statutes are c. 262, sections 2, 4A and 4C, and both published Trial Court schedules print the same totals. Venue follows the trustee under c. 246, sections 2 and 4. The officer's service charge is separate.

• Ceiling: 85 Percent of Gross Reserved, $750 Floor

  The trustee must reserve as exempt the greater of 85 per cent of the debtor's gross wages or 50 times the greater of the federal or the Massachusetts hourly minimum wage for each week or portion thereof (c. 246, s. 28). At the Commonwealth's $15.00 minimum under c. 151, s. 1 that leg is $750 a week, so the most the summons takes is the lesser of 15 per cent of gross wages or the excess over $750. The percentage runs on gross pay, not disposable earnings, and support cases run on federal limits instead.

• The Summons Must State the Exempt Amount

  Section 28 requires every writ of attachment to contain a statement of the amount exempted from attachment and a direction to the trustee to pay the exempted amount over to the debtor in the same manner and at the same time as if no attachment had been made. Rule 4.2(b) repeats the duty for wages, pensions and bank accounts, and also requires the summons to name the justice who entered the approval order and the date of that order, plus the clerk's signature and the seal of the court.

• Serve Within 30 Days, Answer Within 20

  Rule 4.2(c) requires the trustee process to be served within 30 days after the date of the order approving the attachment. Section 10 then gives the trustee 20 days after service to file its answer, under oath or signed under the penalties of perjury, disclosing plainly, fully and particularly what it held when served. A good-faith payment made after service but before the trustee knew of it is credited under section 27, so actual notice is worth chasing.

• One Snapshot, and a 30 Day Demand Window

  Nothing here is continuing. The summons binds what the trustee held at service, and reaching later wages means serving the same trustee again under section 8 with a further order under Rule 4.2(f). After judgment, section 40 frees the credits to another attachment or back to the debtor if they are not demanded by force of the execution within thirty days. A trustee that neglects to answer is defaulted and adjudged trustee (s. 18) and faces judgment for the whole amount remaining unsatisfied (s. 46).