HOUSE BILL NO. 526
AN ACT TO AMEND CHAPTER 95, TITLE 10, DELAWARE CODE, RELATING TO THE JUSTICE OF THE PEACE COURT ATTACHMENT STATUTE.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Section 9583, Chapter 95, Title 10, Delaware Code by striking the period "." at the end thereof and substitute in lieu thereof the following:
provided, however, that no such writ of attachment shall issue unless the affidavit provides specific facts demonstrating the validity of the debt and for believing that the debtor has absconded or is about to remove himself or his effects out of the State, with intent to defraud his creditors, or intentionally concealed himself so that process of summons cannot be served on him, or Is a nonresident of the State; provided further, that the plaintiff provide, at the time of filing, a cash bond in the amount of $100 conditioned that if the suit shall not be prosecuted with effect, or if the judgment rendered therein shall be in favor of a defendant, the plaintiff will pay any and all costs which may be awarded to a defendant, together with any and all damages, not exceeding the amount of the bond, which a defendant in the suit may have sustained by reason of such attachment, the remainder, if any, to be returned to the plaintiff when judgment is rendered."
Section 2. Amend Section 9584, Title 10, Delaware Code by striking Section 9584 in its entirety and substituting in lieu thereof a new Section 9584 to read as follows:
§9584. Form of writ; form of Garnishee's Notice of Service.
(a) The form of a writ of attachment shall be as follows:
County, ss. The State of Delaware,
To any Constable, greetings:
We command you to attach the goods and chattels, rights and credits of
the debtor, in order to make good to the plaintiff, a cause of action wherein
the sum of $ is demanded, and that you serve any garnishee of the said debtor found in your bailiwick with 2 copies of this writ, 2 copies of the Affidavit for Attachment filed by the plaintiff and a Garnishee Notice of Service form; and you have then there this warrant, with your doings hereon duly certified.
To GARNISHEE: You are hereby ordered under penalty of contempt to hand-deliver
forthwith to , the debtor, a copy of this writ and a copy of the Affidavit for
Attachment; and TO return a completed copy of the Garnishee Notice of Service form to the Court as soon as service upon the said debtor is effectuated; and to withhold 151. of the said debtor's net earnings from his/her next regularly scheduled paycheck only and to hold same until released by order of the Court.
To DEBTOR: 15% of your net wages from your next scheduled paycheck have been
attached for the reasons set forth In the Affidavit for Attachment. The
withholding of your wages shall be released by the Court if you: (a) Appear at
the Court at any time, Monday through Friday, from 8 AM to 4 PM, before final judgment and enter your appearance acknowledging that you will answer the plaintiff's demand and satisfy any judgment rendered against you in such suit or (b) Appear at the Court at any time, Monday through Friday, from 8 AM to 4 PM, and contest the attachment, in which event the Court will conduct an immediate ex parte postdeprivation hearing on the seizure of your wages and shall dissolve the attachment If the Court determines that there no longer exists a factual basis demonstrating the need for the writ; or (c) Appear for trial which is scheduled for the _day of , 19 , at AM/PM at Court No. . located
You are further advised that failure to appear for trial will result in a default judgment being entered against you.
Witness my hand and seal this day of . 19
Justice of the Peace'
(b) The form of the Garnishee's Notice of Service shall be as follows'
'Garnishee's Notice of Service
To: Clerk of the Court, Justice of the Peace
Please be advised that I , garnishee in Civil Action No. .
wherein is plaintiff and is the debtor, do hereby certify that a copy of the Writ of Attachment and a copy of the Affidavit for Attachment were served upon the debtor at AM/PM on the day of 19 . I further certify that 15% of the debtor's next scheduled paychiTIEWIYI be attached and held by the garnishee until released by the Court.
Complete below only If applicable
Please be advised that I , garnishee In civil action no. , wherein
is the plaintiff and Is the debtor, do hereby certify this day of ____.
19 . that the said debtor is not an employee of the garnishee and that, therefore, garnishee requests that he be released from his obligations under the Writ of Attachment and is willing to appear to deny that there is anything of the debtor's in my hands or possession if summoned by the Court for this or other purpose.
Section 3. Amend Section 9586, Chapter 95. Title 10, Delaware Code by adding
thereto a new Subsection (d) to read as follows:
"(d) If the justice has not received from the garnishee a copy of the
Garnishee's Notice of Service form within 10 days after receipt thereof by the garnishee, the justice shall Issue process to compel the appearance of the said garnishee."
Section 4. Amend Section 9589, Chapter 95, Title 10, Delaware Code, by striking the
said Section 9589 in its entirety and substituting in lieu thereof a new Section 9589 to read as follows:
19589. Dissolution of Attachment.
(a) If the original debtor appears at the Court at any time, Monday through
Friday, from 8 AM to 4 PM, before final judgment and enters his appearance acknowledging that he will answer the plaintiff's demand and satisfy any judgment rendered against him In such suit, the attachment shall be dissolved, and the cause proceed as In other cases.
(b) If the original debtor appears at the Court at any time, Monday through
Friday, from 8 AM to 4 PM, before final judgment and contests the attachment, the justice shall immediately conduct an ex parte postdeprlvation hearing on the seizure of his wages and If the justice then determines that there no longer exists a factual basis demonstrating the need for the writ, the attachment shall be dissolved, and the cause proceed as in other cases.
(c) If the original debtor appears for trial, the attachment shall be
dissolved, and the cause proceed as In other cases.
(d) In cases not falling within subsections (a), (b) or (c) above, the
attachment shall, In any event, be dissolved, and the cause proceed as In other cases, 30 days from the date on which the writ of attachment Issued."
Approved July 14, 1988.