ICLE Homepage | Other Proposed Amendments to the MCRs

     June 11, 1996


Proposed Amendments of MCR 3.101, 
3.102, and 3.104

ICLE Editor's Note:
[Italicized, bracketed text] indicates text that has been deleted.
Bold text indicates new text.
          On order of the Court, this is to advise that the Court
is considering amendments of Rules 3.101, 3.102, and 3.104 of the
Michigan Court Rules.  Before determining whether the proposals
should be adopted, changed before adoption, or rejected, this
notice is given to afford any interested person the opportunity
to comment on the form or the merits of the proposals.  We
welcome the views of all who wish to address the proposals or who
wish to suggest alternatives. 

          The rules would be amended as follows:

Rule 3.101  Garnishment After Judgment  

(A)  Definitions.  In this rule,

     (1) - (3) [Unchanged.]

     (4)  "periodic payments" includes but is not limited to,
          wages, salary, commissions, bonuses, and other
          [earnings] income paid to the defendant
          during the period of the writ; land contract
          payments; rent; and other periodic debt or contract
          payments.  Interest payments and other payments
          listed in MCL 600.4012(4)(a)-(d); MSA 27A.4012(4)(a)-
          (d) are not periodic payments.

(B) - (C) [Unchanged.]

(D)  Request for and Issuance of Writ.  The clerk of the court
     that entered the judgment shall issue a writ of garnishment
     if the plaintiff, or someone on the plaintiff's behalf,
     makes and files a statement verified in the manner provided
     in MCR 2.114(A) stating:

     (1) - (2) [Unchanged.]

     (3)  that the [affiant] person signing the
          verified statement knows or has good reason to
          believe that 

          (a) - (c) [Unchanged.]

(E) - (J) [Unchanged.]

(K)  Objections.

     (1) - (2) [Unchanged.]

     (3)  Within 7 days of the filing of objections, [the
          court shall send to the plaintiff, the defendant, and
          the garnishee] notice of the date of hearing on the
          objections shall be sent to the plaintiff, the
          defendant, and the garnishee.[, which] 
          The hearing date shall be within 21 days of the
          date the objections are filed.  In district court,
          notice shall be sent by the court.  In circuit and
          probate court, notice shall be sent by the objecting

     (4)  [Unchanged.]

(L) - (M) [Unchanged.]

(N)  Orders for Installment Payments.  

 (1)           An order for installment payments under MCL
               600.6201 et seq.; MSA 27A.6201 et seq., suspends
               the effectiveness of a writ of garnishment of
               periodic payments for work and labor performed by
               the defendant from the time the order is served on
               the garnishee.  An order for installment
               payments does not suspend the effectiveness of a
               writ of garnishment of nonperiodic payments or of
               an income tax refund or credit.

 (2)                If an order terminating the installment
                    payment order is entered and served on the
                    garnishee, the writ again becomes effective
                    and remains in force until it would have
                    expired if the installment payment order had
                    never been entered.

(O) - (R) [Unchanged.]

(S)  Failure to Disclose or to Do other Acts; Default; Contempt.

     (1)  If the garnishee fails to disclose or do a required act
          within the time limit imposed, a default may be taken
          as in other civil actions.  A default judgment against
          a garnishee may not exceed the amount of the
          garnishee's liability as provided in subrule

     (2) - (3) [Unchanged.]

(T)  [Unchanged.]

Rule 3.102     Garnishment Before Judgment

(A)  Availability of Prejudgment Garnishment.

     (1) - (2) [Unchanged.]

     (3)  This rule also applies to a prejudgment garnishment in
          an action brought to enforce a foreign judgment. 
          However, the following provisions apply:

          (a)  The [principal] defendant need not be
               subject to the court's jurisdiction;

          (b)  The [affidavit] request for
               garnishment must show that

               (i) - (ii)  [Unchanged.]

             (iii)  the [affiant] person making the
                    request knows or has good reason to
                    believe that a named person

                    (A) - (B) [Unchanged.]

          (c)  [Unchanged.]

(B)  [Affidavit] Request for Garnishment.  After
     commencing an action, the plaintiff may seek a writ of
     garnishment by filing an ex parte motion supported by a[n
     affidavit] verified statement setting forth
     specific facts showing that:

     (1) - (3) [Unchanged.]

     (4)  the [affiant] person signing the
          statement knows or has good reason to believe that
          a named person

          (a) - (b) [Unchanged.]

     On a finding that the writ is available under this rule and
     that the [affidavit] verified statement states
     a sufficient basis for issuance of the writ, the judge to
     whom the action is assigned may issue the writ.

(C)  Writ of Garnishment.  The writ of garnishment must have
     attached or include a copy of the [garnishment
     affidavit] verified statement, and must:

     (1)  direct the garnishee [defendant] to:

          (a)  file with the court clerk within [7]
               14 days after the service of the writ on
               him or her a verified disclosure [under
               oath] indicating his or her liability (as
               specified in subrule [E]) to the
               [principal] defendant;

          (b)  deliver no tangible or intangible property to the
               [principal] defendant, unless allowed by
               statute or court rule;

          (c)  pay no obligation to the [principal]
               defendant, unless allowed by statute or court
               rule; and

          (d)  promptly provide the [principal] defendant
               with a copy of the writ and [affidavit]
               verified statement by personal delivery or
               by first class mail directed to the
               [principal] defendant's last known address;

     (2)  direct the [principal] defendant to refrain from
          disposing of any negotiable instrument representing a
          debt of the garnishee [defendant] or of any
          negotiable instrument of title representing property in
          which he or she claims an interest held in the
          possession or control of the garnishee

     (3)  inform the [principal] defendant that unless the
          [principal] defendant [moves to set aside the
          writ] files objections within 14 days after
          service of the writ on the defendant, or appears
          and submits to the jurisdiction of the court, an order
          may enter requiring the garnishee [defendant] to
          deliver the garnished property or pay the obligation to
          be applied to the satisfaction of the plaintiff's
          claim; and

     (4)  [Unchanged.]

(D) - (E) [Unchanged.]

(F)  Disclosure.  The garnishee [defendant] shall file and
     serve a disclosure as provided in MCR 3.101(H).

(G)  Payment or Deposit Into Court.  MCR 3.101(I) and (J)
     apply[ies] to prejudgment garnishment,
     except that payment may not be made to the plaintiff until
     after entry of judgment, as provided in subrule (I).

(H)  Objection; Dissolution of Prejudgment Garnishment. 
     Objections to and [D]dissolution of a
     prejudgment garnishment [is] are governed by
     MCR 3.101(K) [the rule for dissolution of
     attachments.] and MCR 3.103(H).

(I)  Proceedings After Judgment.

     (1)  If the garnishment remains in effect until entry of
          judgment in favor of the plaintiff against the
          [principal] defendant, the garnished property or
          obligation may be applied to the satisfaction of the
          judgment in the manner provided in MCR
          3.101([L]I), (J), (M), and

     (2)  MCR 3.101([O]P) and ([P]Q)
          and MCR 3.103(I)(2) apply to prejudgment garnishment.

(J)  Costs and Fees; Default; Contempt; Judicial Discretion.  MCR
     3.101([Q]R), ([R]S), and (T)
     apply to prejudgment garnishment.

Rule 3.104   Installment [Judgment] Payment Orders

(A)     Availability of Order.  [Before or]
               After a money judgment is rendered against a
               defendant, he or she may move for entry of an
               order permitting the judgment to be paid in
               installments in accordance with the provisions of
               MCL 600.6201 et seq.; MSA 27A.6201 et seq.  A
               copy of the motion shall be served on the
               plaintiff by the clerk of the court.  The motion
               shall be granted without further hearing unless
               the plaintiff files, and serves upon defendant,
               written objections within 14 days from the service
               date of the defendant's motion.  The court shall
               decide the motion on the basis of the papers filed
               or notify the parties that a hearing will be

(B)     Failure to Comply with Installment Order.  If
               the defendant fails to make payments pursuant to
               the order for installment payments, the plaintiff
               may file and serve upon the defendant a motion to
               set aside the order for installment payments. 
               Unless a hearing is requested within 14 days of
               mailing, the order to set aside the order for
               installment payments shall be entered.

(C)     Request After Failure to Comply with Previous
               Order.  If the defendant moves for an order for
               installment payments within 91 days after a
               previous installment order has been set aside,
               unless good cause is shown the court shall assess
               costs against the defendant as a condition of
               entry of the new order.

STAFF COMMENT:  The proposed amendments of the rules governing
garnishment and installment payment orders are based on
suggestions received from several sources following the major
revisions of the garnishment rule effective April 1, 1994.

The proposed amendment of MCR 3.101(A)(4) would modify the
definition of "periodic payments" in light of uncertainties
caused by the current rule and the amendment of MCL 600.4012(4); 
MSA 27A.4012(4).

The proposed amendment of MCR 3.101(K)(3) would require the
moving party, rather than the court, to send the notice of
hearing on objections in circuit and probate court actions.

The proposed changes in MCR 3.101(N) and MCR 3.104 relate to
installment payment orders under MCL 600.6201 et seq.;
MSA 27A.6201 et seq.

The remaining changes in MCR 3.101 are technical corrections in
terminology and cross reference. 

The proposed changes in MCR 3.102, the prejudgment garnishment
rule, adjust terminology and correct cross references in light of
the amendments of MCR 3.101 effective April 1, 1994.

The staff comment is published only for the benefit of the bench
and bar and is not an authoritative construction by the Court.  


          Publication of this proposal does not mean
          that the Court will issue an order on the
          subject, nor does it imply probable adoption
          in its present form.  Timely comments will be
          substantively considered and your assistance
          is appreciated by the Court.                 

          A copy of this order will be given to the secretary of
the State Bar and to the State Court Administrator so that they
can make the notifications specified in MCR 1.201.  Comments on
these proposals may be sent to the Supreme Court clerk within 60
days after they are published in the Michigan Bar Journal.  When
filing a comment, please refer to our file No. 94-54.