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(v). Common Law


Most states recognize some cause of action to address a plaintiff’s claim of improper
garnishment:

Where an order of attachment or garnishment is improperly obtained or tortiously
employed, the defendant in the proceedings may have several modes of obtaining
redress for injuries caused thereby. He may proceed on the attachment or
garnishment bond, if one has been given, sue for malicious or wrongful attachment
or garnishment, or maintain an action for abuse of process or malicious prosecution.

2

6 Am. Jur. 2d Attachment and Garnishment § 604. “As with the tort of malicious prosecution, two
of the necessary elements of a cause of action for wrongful garnishment are

(1) an absence of
probable cause for such proceeding, and

(2) the presence of legal malice, which ‘may be inferred
entirely from a lack of probable cause.’” Burshan v. Nat’l Union Fire Ins. Co., 805 So.2d 835, 845
(Fla. Dist. Ct. App. 2001) (quoting Adams v. Whitfield, 290 So.2d 49, 51 (Fla. 1974)).

One court
has stated that “[w]hether a garnishment is wrongful depends upon whether the steps taken by the
parties seeking the writ comply with the statute authorizing such relief.” Chandler v. Cashway Bldg.
Materials, Inc., 584 S.W.2d 950, 952 (Tex. App. 1979).
In addition, certain states have explicitly ruled that a cause of action for wrongful
garnishment may arise from the garnishment of exempt property.
Owens v. Deutch, 137 P.2d 181,
185 (Kan. 1943); Grimestad v. Lofgren, 117 N.W. 515 (Minn. 1908); Rice v. Chase, 9 N.H. 178
(1838). See generally 6 Am. Jur. 2d Attachment and Garnishment § 612.
One state has ruled that
3 In support of its claim of absolute immunity, Defendant cites Etapa v. Asset Acceptance Corp., 373 F. Supp.
2d 687 (E.D. Ky. 2004), and Beck v. Codilis, No. 4:99 CV 485-RH, 2000 WL 34490402 (N.D. Fla. Dec. 27, 2000), two
cases that specifically addressed false affidavits with respect to FDCPA claims. Because neither case addresses the
complaining witness analysis, they are unpersuasive in the present factual context.

A single instance of garnishment of exempt property does not amount to abuse of process, but
multiple instances may be sufficient. Layton v. Chase, 144 N.W.2d 561, 564 (S.D. 1966).

The case law cited above demonstrates that states have allowed claims where a plaintiff
alleges an improper garnishment, whether the claim is one of malicious prosecution, abuse of
process, or wrongful garnishment. This includes a claim that the defendant improperly garnished
exempt property.
The defendant is not entitled to absolute immunity to counter these claims;
instead, he has the defenses of probable cause and lack of malice. This common law backdrop
generally indicates that Defendant would not be absolutely immune from suit for an improper
garnishment.

The question then becomes whether Defendant, although not immune from suit, should
receive absolute immunity for the statements he made in the affidavit. From the Supreme Court
precedent previously discussed, this Court draws several rules:

(1) A private witness testifying at trial is absolutely immune for her testimony;

(2) A private witness testifying at a grand jury is absolutely immune for her testimony;

(3) A private witness testifying as a complaining witness has no immunity for her testimony.

This Court finds that Defendant is a complaining witness.

3 In Wyatt, the Supreme Court ruled that
“although public prosecutors and judges were accorded absolute immunity at common law, such
protection did not extend to complaining witnesses who, like respondents, set the wheels of
government in motion by instigating a legal action.” 504 U.S. 164-65 (citation omitted).

Here,
Defendant instigated the legal action of garnishment and “set the wheels of government in motion.”
In order to do so, Defendant swore to the truth of a certain set of facts, i.e., it had reasonable belief
that the target property of the garnishment was non-exempt. Because of this affidavit, the state court
then bound Plaintiff’s bank account. Defendant’s garnishment action is the result of Defendant’s
“complaint” that Plaintiff had non-exempt property, and that Plaintiff thus owed this non-exempt
property to Defendant.

From this Court’s perspective, Defendant’s actions mirror the instigation of an action in
replevin. As explained in Wyatt, the Supreme Court had grouped together replevin and garnishment
actions in the § 1983 context, and with good reason.

The two actions are quite similar: in both
claims, the plaintiff believes the defendant holds property to which the plaintiff is entitled; in both
claims, the plaintiff files an affidavit that swears to his belief; in both claims, the court then
dispossesses the defendant of the property or otherwise limits the defendant’s use; and in both
claims, the defendant then has the right to a hearing to prove that the property properly belongs to
him. In Wyatt, the Supreme Court noted that a private defendant was not immune from suit for
instigating an improper replevin action under a claim of malicious prosecution or abuse of process;
the defendant did, however, have the defense of good faith. 504 U.S. 164-65.

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This Court sees no
principled distinction that justifies differing treatment for an improper garnishment action.
Defendant may argue that an action in replevin is a prejudgment action, whereas a
garnishment action is a postjudgment action. This is a trivial distinction.

The fact that Defendant
obtained an underlying judgment in support of the garnishment is irrelevant; the validity of the
underlying judgment does not extend to an ancillary action.

This Court looks only to the
garnishment action itself to determine whether that claim was properly made.


Defendant argues that the complaining witness analysis does not apply because the
complaining witness analysis deals only with arrest warrants, and no analogy can be drawn to this
case because the probable cause requirement for arrest warrants derives from the Constitution,
whereas Plaintiff does not and cannot make the same constitutional claim for an improper
garnishment.

While the Supreme Court used the complaining witness analysis in Malley in its
treatment of a police officer’s statement to support probable cause for an arrest warrant, the analysis
derives from the common law tort of malicious prosecution.
Malley, 475 U.S. at 341 n.3. If a
private defendant instituted a baseless civil suit without probable cause and with malice against the
plaintiff, then the plaintiff would have a cause of action against the defendant based not in the
Constitution but in the common law, and the defendant would be a complaining witness without
absolute immunity.

Likewise, if a private defendant instituted an improper garnishment action
without probable cause and with malice, the plaintiff garnishee would have a cause of action at
common law.

See supra.
Thus, the complaining witness analysis applies outside of the
constitutional context.

Defendant next argues that “no analogy can be drawn between a claim for malicious
prosecution and a claim that an affidavit in aid of garnishment contains a false statement.” (Def.
Reply Br. 7.) This Court disagrees. As explained above, a plaintiff garnishee can use malicious
prosecution as a claim to remedy an improper garnishment, so malicious prosecution is not just
analogously on point; it is directly on point. This is logical, as malicious prosecution is defined as
“a suit for damages brought by one against whom a criminal prosecution, civil suit, or other legal
proceeding has been instituted maliciously and without probable cause, after the termination of the
former proceedings in favor of the defendant.” 52 Am. Jur. 2d Malicious Prosecution § 1.
Here,
Defendant instituted a garnishment proceeding against Plaintiff, and the proceeding ended in favor
of Plaintiff. Plaintiff claims the proceeding was instituted maliciously and without probable cause
because Defendant did not have a reasonable basis to believe that Plaintiff’s property was nonexempt.
Plaintiff could thus sufficiently state a claim of malicious prosecution to which Defendant
could not assert a defense of absolute immunity. Wyatt, 504 U.S. at 164.


Defendant argues that as long as the underlying judgment is valid, there can be no claim of
malicious prosecution with respect to a garnishment action. None of the cases to which Defendant
cites support this contention. In Vanover v. Cook, the court found that the plaintiff had failed to state
a malicious prosecution claim, because no judgment had been entered in the plaintiff’s favor.
260
F.3d 1182, 1189-90 (10th Cir. 2001). It is undisputed in the instant case that the state court
dismissed the garnishment of Plaintiff’s bank account. Novick v. Becker actually supports Plaintiff’s
position: the court found that “the detention of the funds of a party by garnishment is such
interference with his property as to sustain an action of malicious prosecution.” 90 N.W.2d 620, 622
(Wis. 1958).

The court ultimately found that the plaintiff did not properly allege lack of probable
cause on the part of the defendant. Id. at 623. Duckworth v. Boykin dealt with a case where the
plaintiff in the malicious prosecution suit “made an unsuccessful attempt to obtain a judgment that
the money raised by the garnishment was exempt from that process.” 41 S.E. 62, 62 (Ga. 1902).
In other words, the garnishment action was good, and thus the malicious prosecution claim failed,
because the plaintiff failed to show that the garnished property was exempt. Here, Plaintiff has
shown and the state court has ruled that the garnished property was exempt. Salsgiver v. Standard
Oil Co. was a case where the plaintiff failed to prove malice; it did not state that a plaintiff could
never maintain a malicious prosecution claim if there was a valid underlying judgment.
No. 77 C.A.
66, 1978 WL 214778 (Ohio Ct. App. Jan. 17, 1978).
The only case that possibly lends support to Defendant’s contention is Delk v. Colonial Fin.
Co., 194 N.E.2d 885 (Ohio Ct. App. 1963). There, the state court reasoned that “[i]t is obvious that
the existence of defendant’s valid judgment provided complete probable cause for instituting
garnishment proceedings.” Id. at 888.

This Court agrees that generally, when a creditor has
obtained a judgment, she may then seek garnishment; however, this general probable cause does not
equate to the specific probable cause requirement of Ohio law that Defendant have a reasonable
basis to believe that the property garnished is non-exempt. In other words, it is no answer that
Plaintiff owes Defendant money, and that Plaintiff owns property; Defendant must show that it
reasonably believes the garnished property is non-exempt.

Moreover, Delk could not possibly
encompass this specific form of probable cause, as it was decided well before the existence of the
Ohio statutory requirement of the affidavit. While the language in Delk was applicable to the days
when the creditor could garnish property without investigating the nature of the property, those days
are no more in Ohio.


Defendant’s actions could properly be characterized as malicious prosecution. As a result,
it is a complaining witness without absolute immunity.


The fact that Plaintiff is suing under the
FDCPA and not the common law claim does not affect the immunity status of Defendant. As the
Supreme Court stated in Kalina, “in determining immunity, we examine the nature of the function
performed.” 522 U.S. at 127 (internal quotations and citation omitted).

In this case, Defendant
functioned as a complaining witness, so it may not assert absolute immunity against any claim in
connection with this role.

From a practical perspective, treating Defendant as a complaining witness without immunity
simply makes sense. The Court reserves absolute immunity for individuals when they functionally
serve as “integral parts of the judicial process,” such as judges, advocates, and witnesses in their
ordinary judicial roles. Briscoe, 460 U.S. at 335. The purpose of this immunity is to preserve the
integrity of our judicial system, not to assist a self-interested party who allegedly lies in an affidavit
to initiate a garnishment proceeding.


III. CONCLUSION

For the foregoing reasons, this Court AFFIRMS the order of the district court.

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