West Virginia Writ of Garnishment
West Virginia calls the wage instrument a suggestee execution. A magistrate court clerk issues it for a flat $5.00 on affidavit form SCA-CM640NP, a circuit clerk charges $25 for the same act, and the levy is capped at twenty percent. Attorney review available.
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Introduction
The same enforcement paper costs $5.00 in one West Virginia courthouse and $25 in another, so the first question is which clerk you are standing in front of. W. Va. Code Section 50-3-1(b) prices every service regarding enforcement of a judgment in magistrate court at a flat $5.00, and it names execution, suggestion, garnishment and suggestee execution together in that one line. Section 59-1-11(b)(5) charges $25 for the identical act in circuit court, plus $25 to issue a suggestion against a bank. Because magistrate civil jurisdiction reaches $20,000 under Section 50-2-1, and because that court keeps continuing jurisdiction over motions about post-judgment process it issued itself, most consumer judgments here are collected on the five dollar paper. The paper is not called a writ of garnishment. Rule 69(a)(1) of the West Virginia Rules of Civil Procedure says process to enforce a money judgment shall be a writ of execution, a writ of suggestee execution and such other writs as are provided by law, and the phrase writ of garnishment appears nowhere in those rules or in the statutory article that governs wages. You apply on the Supreme Court of Appeals affidavit, form SCA-CM640NP, and the clerk issues the execution. Then the clerk, not you, mails the debtor a certified copy and sits on it: Section 38-5A-4 bars service on the employer until five days have run from the hour of that mailing, which the clerk notes on the face of the original. One more thing a creditor should budget for before filing. Nothing is withheld for twenty days after a magistrate judgment, because Section 50-5-12(a) gives any party that long to appeal as of right and the filing of an appeal stays enforcement automatically. DocDraft builds your West Virginia suggestee execution papers from your facts, with attorney review available before you file.
Key Things to Know
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In West Virginia the instrument is called a suggestee execution, and Section 38-5A-1(2) defines it as an execution differing from an ordinary execution upon a judgment only in that it is directed against money due or to become due to the judgment debtor from the suggestee. The employer or bank is the suggestee, not the garnishee.
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Which clerk issues it decides what you pay. A magistrate court clerk charges $5.00 under Section 50-3-1(b), collected in advance; a circuit clerk charges $25 under Section 59-1-11(b)(5) to issue or renew one and serve notice on the debtor by certified mail. Vacating or modifying it is $1, a ceiling Section 38-5A-12 puts in the statute itself.
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You apply by sworn affidavit, not by motion. Form SCA-CM640NP, Affidavit for Suggestee Execution, is prescribed by the Supreme Court of Appeals under Section 38-5A-11, which requires that prescribed forms be followed in the preparation of all suggestee executions. Section 38-5A-3(a) lets you apply without notice to the judgment debtor.
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The levy is twenty percent and no more, and West Virginia keys its own floor to fifty times the federal minimum hourly wage rather than the thirty times the federal statute uses. Section 38-5A-3(a) also bars issuance at all unless weekly salary or wages, after deduction of all state and federal taxes, exceed fifty times that wage. Section 38-5B-2(a) applies the same two figures where the employer is the state or a political subdivision.
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Service runs through the clerk and it is not immediate. Section 38-5A-4 requires the court or clerk to mail a certified copy to the judgment debtor by certified mail, return receipt requested, note the day and hour on the face of the original, and withhold service on the suggestee until five days have expired. Section 38-5A-5(a) then has the clerk serve the suggestee by certified mail with delivery restricted to the addressee.
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Money does not arrive every payday. Section 38-5A-5(c) requires the suggestee to pay over what it has held once every ninety days, Rule 69(a)(1) puts the officer's return at the expiration of one year after issuance, and Section 38-5A-10 makes the officer account for and pay over collections at least once a month.
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One execution at a time, with a spillover rule. Section 38-5A-3(a) satisfies only the senior execution, but where the senior one is satisfied without exhausting that period's reachable share, the balance goes in order of priority to junior executions already served. A suggestee execution also outranks any assignment the debtor files with the suggestee after service of the Section 38-5A-4 notice.
Key decisions before you file
Before you file a Writ of Garnishment in West Virginia, a few decisions shape the document: which option to choose and what each one means. The Writ of Garnishment guide walks through them.
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West Virginia Requirements for Writ of Garnishment
Pick the Clerk: $5.00 Magistrate or $25 Circuit
W. Va. Code Section 50-3-1(b) charges a flat $5.00 in magistrate court for each service regarding enforcement of a judgment, naming execution, suggestion, garnishment and suggestee execution in one line, collected in advance. Section 59-1-11(b)(5) charges $25 in circuit court to issue or renew a suggestee execution and mail the debtor notice. Magistrate civil jurisdiction reaches $20,000 under Section 50-2-1, and that court keeps continuing jurisdiction over motions about its own post-judgment process.
Affidavit for Suggestee Execution, SCA-CM640NP
The application is a sworn affidavit on the statewide form SCA-CM640NP, Affidavit for Suggestee Execution, revised 06/27/2016 and approved by the Supreme Court of Appeals on 08/30/2016, docket code MPASE. Section 38-5A-11 authorizes the Court to prescribe forms of suggestee executions and requires that prescribed forms be followed in preparing all of them, so this is not an optional sample. Section 38-5A-3(a) lets the creditor apply without notice to the judgment debtor.
Swear the Fifty Times Threshold Before Issuance
Section 38-5A-3(a) bars the clerk from issuing at all unless proof is made that the salary or wages due, after deduction of all state and federal taxes, exceed in any week fifty times the federal minimum hourly wage then in effect. Form SCA-CM640NP carries that statement of belief for the creditor to swear. Confirm the current federal figure before filing, because the multiplier keys to the federal wage and not to the West Virginia minimum wage.
Ceiling: Twenty Percent and No More
The lien and continuing levy reaches twenty percent of the salary or wages due or to become due and no more, and payments may never reduce what the judgment debtor receives to less than fifty times the federal minimum hourly wage per week (Section 38-5A-3(a)). Section 38-5B-2(a) applies the same twenty percent and fifty times figures where the employer is the state, a state agency or a political subdivision. Both beat the federal floor, so do not calculate on 25 percent or on a thirty times multiplier.
The Clerk Serves It, and Not for Five Days
Section 38-5A-4 puts notice in the clerk's hands, not the creditor's: the court or clerk mails a certified copy to the judgment debtor by certified mail, return receipt requested, notes the day and hour on the face of the original, and may not serve the suggestee until five days have expired. Section 38-5A-5(a) then has the clerk serve the suggestee by certified mail with delivery restricted to the addressee, or mail it to the sheriff of another county where the suggestee sits there.
Ninety Day Pay Over and the One Year Return
There is no answer step for a wage suggestee execution. The suggestee withholds under Section 38-5A-5(b) and pays over the full amount held once every ninety days under Section 38-5A-5(c), the officer accounts for and pays over collections at least monthly under Section 38-5A-10, and Rule 69(a)(1) puts the return on the writ at the expiration of one year after issuance. The twenty one day answer deadline in Rule 69(a)(1) belongs to a suggestion against a bank or other third party instead.
One Year Life, Thirty Day Renewal Window
The execution is a continuing levy on wages due or to become due within one year after issuance (Section 38-5A-3(a)). Section 38-5A-7 permits renewal from time to time for a like period and only for the balance due, but the renewal keeps the original priority of lien if, and only if, it is served within a thirty day period ending on the date the original or the last previous renewal expires. Section 38-5A-6 lets the creditor vacate without notice or a hearing, and the fee for that is capped at $1 by Section 38-5A-12.
Senior Execution First, With Spillover to Juniors
Only one suggestee execution is satisfied at a time, but where the senior one is satisfied without exhausting the reachable share of that pay period, the balance goes in order of priority to junior executions already served (Section 38-5A-3(a)). Section 38-5A-8 gives the execution priority over an assignment filed with the suggestee after service of the Section 38-5A-4 notice. A suggestee that fails or refuses to pay over is liable to a direct action by the judgment creditor, and the recovery is applied to the execution (Section 38-5A-5(c)).