Question 1

How does a judgment creditor in North Carolina reach money a bank or a customer is holding for the debtor?

Accepted Answer

By affidavit and an examination, not by serving paper on the holder. Section 1-359(a) first gives the easy route: after an execution has issued, anyone indebted to your judgment debtor may pay the sheriff and the sheriff's receipt is a sufficient discharge for the amount paid. Where the holder declines, Section 1-360 lets you file an affidavit that a person or corporation has property of the judgment debtor or is indebted to the debtor in an amount exceeding ten dollars, and the court may order that party to appear and answer, or in its discretion to answer verified interrogatories. Once the clerk of superior court is satisfied the holder acknowledged unencumbered property or a qualifying debt, Section 1-360.1 says an execution shall issue against that specific property or debt. The clerk's fee for the supplemental proceeding is $30 under Section 7A-308(a)(2).

Question 2

How much of a paycheck can a North Carolina writ reach on an ordinary judgment debt?

Accepted Answer

None, and that is the honest answer rather than a low percentage. North Carolina legislates no wage-garnishment percentage for ordinary judgment debt because it supplies no post-judgment instrument that reaches wages. Section 1-315(a) enumerates the property that may be levied on and sold under execution and unpaid earnings are not among the enumerated classes. Section 1-362 then blocks the supplemental-proceedings route as well: a court may order property in the hands of the debtor or any other person applied to the judgment, except the debtor's earnings for personal services within the 60 days next preceding the order where those earnings are necessary for the use of a family supported wholly or partly by his labor. Do not quote the federal 25 percent figure to a North Carolina employer. That federal cap limits a wage garnishment where a state provides one; here there is nothing for it to cap.

Question 3

Which North Carolina court issues the writ, and what does the clerk charge to issue it?

Accepted Answer

The clerk of superior court of the very court that entered the judgment. Section 1-305(a) obliges that clerk to issue executions on unsatisfied judgments entered in the clerk's court on the request of any party entitled to one and on payment of the necessary fees, and Section 1-307 allows the writ to issue only from the court that rendered the judgment, with the return made back to that county. Section 1-308 directs it to the sheriff of any county where the judgment is docketed, requires docketing in that county first, and permits executions to different counties at the same time. The fee is $25 under Section 7A-308(a)(5). The instrument is form AOC-CV-400, signed by the Clerk of Superior Court, an Assistant CSC or a Deputy CSC, and the sheriff takes a commission of 5 percent on the first $500 and 2-1/2 percent above that on what is sold or collected.

Question 4

How long does a North Carolina writ of execution stay alive once the clerk issues it?

Accepted Answer

Ninety days, with a wait at the front. Section 1-310(a) provides that in no case shall an execution against property issue until 10 days after entry of judgment, that executions are dated as of the day on which they were issued, and that they are returnable to the court from which they were issued not more than 90 days from that date. The only extension is mechanical: if an execution sale is postponed under Section 1-339.58, the 90-day return period is extended by the number of days of postponement. Collect nothing inside that window and you ask the clerk for a fresh writ rather than renewing the old one. The outer wall is Section 1-306, under which no execution upon a money judgment may issue at any time after ten years from the date of entry.

Question 5

Why would a North Carolina clerk refuse to issue an execution on a judgment that is already entered?

Accepted Answer

Because the exemption gate in Section 1-305(b) has not been cleared. That subsection says the clerk may not issue an execution unless the judgment debtor's exemptions have been designated, or the debtor has waived them as provided in Section 1C-1601(c), or the clerk determines the exemptions are inapplicable to the particular claim as authorized by Section 1C-1603(a)(3). Section 1C-1603(a)(4) makes this the creditor's own task: after judgment the clerk may not issue an execution unless notice from the court has been served on the judgment debtor, and the judgment creditor must cause that notice, with the debtor's statement form, to be served under Rule 4(j)(1), or by mailing it to the debtor's last known address with a filed certificate of service. Section 1C-1603(a)(5) gives the debtor 20 days from receipt to respond, so plan the calendar around it.

Question 6

When must a North Carolina garnishee file its answer, and where does the answer go?

Accepted Answer

Twenty days, and to the clerk. The statutory summons set out in Section 1-440.23 requires the garnishee, within twenty days after service of the summons, to file a verified answer in the Office of the Clerk of the Superior Court of the county named, stating whether at the time of service or at any time since it was indebted to the defendant or held property of the defendant, with the amount and nature, and whether to its knowledge, information or belief any other person is indebted to or holds property of the defendant, naming each. Note which stage that belongs to: Section 1-440.22(a) issues the summons only with the attachment order or before judgment in the principal action. After judgment the creditor is on the Section 1-360 track instead, where the court fixes the time and place at which the holder must appear and answer.

Question 7

What happens if a North Carolina garnishee ignores the summons or pays the debtor anyway?

Accepted Answer

The exposure is the whole claim, not a share of it. Section 1-440.27(a) provides that when a garnishee duly summoned fails to file a verified answer, the clerk shall enter a conditional judgment for the plaintiff against the garnishee for the full amount for which the plaintiff prayed judgment against the defendant, plus an amount the clerk thinks sufficient to cover the plaintiff's costs. Subsection (b) then has the clerk notice the garnishee to appear not later than 10 days after service of the notice to show cause why that judgment should not be made final; if the garnishee still fails to appear and answer, or cannot be found in the county where the original summons was served, the clerk makes it final. Paying the debt over to the defendant is no escape either: Section 1-440.31 says a garnishee who does so after being served, while the proceeding is pending, is not thereby relieved of liability to the plaintiff. On the post-judgment side, Section 1-368 punishes disobedience of a supplemental-proceedings order as for contempt.

Question 8

Can a North Carolina creditor ever garnish wages, for unpaid state taxes or child support?

Accepted Answer

Those are the exceptions, and they belong to particular claimants rather than to a private judgment creditor. For state taxes, Section 105-242(b) subjects intangible property including bank deposits, rent, salaries and wages to attachment and garnishment in payment of a collectible tax, and caps it: no more than ten percent of a taxpayer's wages or salary is subject to attachment and garnishment, with the garnishee liable for the amount owed. For child support, Section 110-136(a) lets a district court judge enter an order of garnishment under which no more than forty percent of the responsible parent's monthly disposable earnings is garnished for the support of a minor child, with the employer as garnishee. Section 1-359 adds narrow agency powers over an employer's card receipts. Holding an ordinary money judgment puts you in none of these categories.

North Carolina Writ of Garnishment

Find out where you stand in North Carolina

Introduction

Key Things to Know

Key decisions before you file

Customize your Writ of Garnishment Template with DocDraft

North Carolina Requirements for Writ of Garnishment

No Wage Instrument for Ordinary Judgment Debt

Form AOC-CV-400, Writ of Execution

Clerk of Superior Court of the Rendering Court

Exemption Notice the Creditor Must Serve First

Clerk Fees: $25 to Issue, $30 Supplemental

Ten-Day Wait, 90-Day Return, Ten-Year Wall

Third-Party Money: Affidavit, Answer, Second Writ

Garnishee Default: Conditional Judgment Made Final

Frequently Asked Questions