§652-1.5 Prejudgment garnishment; procedures. (a) [Repeal and reenactment of subsection on June 30, 2020. L 2015, c 101, §4.] Except as provided in subsection (e), any creditor desiring to secure a garnishment process before judgment shall attach the creditor's petition for process, summons, and direction to the following documents:

(1) An application, directed to the court to which such action is made returnable, for garnishee process to issue under section 652-1(a);

(2) An affidavit sworn to by the creditor or some competent affiant setting forth a statement of facts sufficient to show that probable validity exists to sustain the validity of the creditor's claim;

(3) An order that a hearing be held before the court or a judge thereof to determine whether or not the garnishee process should be granted and that notice of such hearing be given to the defendant debtor; and

(4) A summons directed to the sheriff, deputy sheriff, a police officer, or an independent civil process server from the department of public safety's list under section 353C-10 commanding the sheriff, deputy sheriff, police officer, or independent civil process server to serve upon the debtor at least four days prior to the date of the hearing, pursuant to chapter 634, the application, a true and attested copy of the petition, summons, and direction, the affidavit, and the order and notice of hearing.

(b) The clerk upon receipt of all such documents in duplicate, if the clerk finds them to be in proper form, shall fix a date for the hearing on the application and sign the order of hearing and notice; except that if the application includes a request for a temporary restraining order, the court or a judge of the court shall act on the application for the temporary restraining order, fix a date for the hearing on the garnishee process and sign the order of hearing and notice.

(c) The clerk shall deliver to the creditor's attorney the original documents for service. Service having been made, the original documents shall be returned to the court with the endorsement by the officer of service.

(d) The defendant debtor shall have the right to appear and be heard at the hearing. The hearing shall be limited to a determination of whether probable validity exists to sustain the validity of the creditor's claim and whether any of the property or choses in the possession of the garnishee is, to the same degree of certainty, exempt from execution. If the court, upon consideration of the facts before it, finds that the creditor has sustained the validity of the creditor's claim, then the garnishee process under section 652-1(a) applied for shall be granted as requested or modified by the court except to the extent the defendant debtor has shown all or a portion of the property or choses in the possession of the garnishee to be exempt from execution. The clerk shall deliver to the creditor's attorney the petition, summons, and direction for service of process. If the court denies the application, only a summons and complaint shall be served. In either event, the creditor may alter the return day of the petition, summons, and direction, or the summons and complaint, as the case may be.

(e) The court or a judge of the court may allow the garnishment process to be issued by an attorney without hearing as provided in subsections (a) to (d) upon verification by oath of the creditor or of some competent affiant, that there is reasonable likelihood that the defendant debtor:

(1) Neither resides in nor maintains an office or place of business in this State and may depart from the State within six months from the date of filing under this section;

(2) Has hidden or will hide oneself so that process cannot be served on the defendant debtor;

(3) Is about to remove oneself or one's property from this State;

(4) Is about to fraudulently dispose of or has fraudulently disposed of any of the defendant debtor's property with intent to hinder, delay, or defraud the defendant debtor's creditors; or

(5) Has fraudulently hidden or withheld money, property, or effects which should be liable to the satisfaction of the defendant debtor's debts.

(f) The defendant debtor in an action in which garnishee process was allowed under subsection (e) may move to dissolve or modify the garnishee process in which event the court shall proceed to hear and determine the motion expeditiously. If the court determines at the hearing requested by the debtor that probable validity exists to sustain the validity of the creditor's claim, then the garnishee process granted shall remain in effect, except as modified pursuant to a finding that all or a portion of the property or choses in action in the possession of the garnishee is exempt from execution. If the court determines there is no such probable validity, the garnishee process shall be dissolved. An order shall be issued by the court setting forth the action it has taken.

(g) The court's determinations under this section shall have no effect on the determination of any issues in the action other than the issues relevant to proceedings under this section nor shall they affect the rights of the defendant debtor in any other action arising out of the same claim. The court's determinations under this section shall not be given in evidence nor referred to in the trial of such action. [L 1975, c 155, §1(1); am L 1977, c 33, §3; gen ch 1985; am L 2013, c 116, §§13, 25(12)]