ICLE Homepage | Other Proposed Amendments to the MCRs
June 11, 1996
Proposed Amendments of MCR 3.101,
3.102, and 3.104
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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
(a) - (c) [Unchanged.]
(E) - (J) [Unchanged.]
(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
(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.]
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.]
(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 
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
(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
(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
(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);
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.