Alina Farooq v. Azeem Khan ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ALINA FAROOQ,
No. 80970-9-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
AZEEM AHMED KHAN,
Respondent.
APPELWICK, J. —The trial court denied Farooq’s motion to quash a writ of
garnishment. Farooq failed to meet her burden to prove she did not own the funds
deposited in a joint bank account. And, Farooq did not identify a substantial injury
resulting from a failure to comply with statutory garnishment procedures. The trial
court acted within its discretion. We affirm.
FACTS
Following a 2017 family law hearing, the court entered an order denying
Alina Farooq’s motions and awarding attorney fees of $1,500 to Azeem Khan. In
June 2019, Khan applied for a writ of garnishment, stating that Farooq had not paid
the judgment and he had reason to believe that Wells Fargo Bank N.A. held funds
in an account for Farooq. The court issued a writ of garnishment against Wells
Fargo. Khan served the writ on Wells Fargo, the garnishee, and mailed certain
documents, including the writ, to Farooq’s Atlanta, Georgia address.
No. 80970-9-I/2
On August 8, 2019, Wells Fargo answered the writ. The bank’s answer
confirmed that Farooq maintained a financial account with Wells Fargo which held
sufficient funds to satisfy the amount owed to Khan, the judgment creditor.
Farooq did not file an affidavit to controvert the bank’s answer. See RCW
6.27.210, .220. However, on August 15, 2019, represented by counsel, Farooq
filed a motion to quash the writ of garnishment. She primarily argued that the court
should set aside the writ because the garnished account contained only funds
deposited by a third-party, Shahzaib Khan, the co-owner of the account.1 Farooq
also claimed that Khan did not notify her of the writ within the timeframe established
by the garnishment statute or provide her with a specific statutorily-mandated
document to apprise her of her rights. See RCW 6.27.130, .140.
In support of her motion, Farooq provided, among other documents, the
declaration of Shahzaib. Shahzaib stated that he had been the family nanny, that
he was the only person who deposited funds in the garnished savings account,
and that Farooq’s name was on the account so that “if anything happened, [she]
could remove the money” and send it to his family in Pakistan.
The court denied the motion to quash the writ, finding that Farooq was a
“co-owner of [the] Wells Fargo account” and that her statements and those of
Shahzaib were “not credible.”2
1 Because Shahzaib Khan and Azeem Khan share the same last name, we
refer to Shahzaib Khan by his first name for clarity.
2 The record on appeal does not include clerk’s minutes for an August 30
hearing on the motion to quash the writ, but Farooq’s briefing indicates that the
court held a hearing before denying her motion.
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Acting pro se, Farooq filed a motion for reconsideration of the court’s ruling.3
She submitted new documentary evidence in support of her motion, including
numerous bank statements. She claimed that she was added to the garnished
savings account on July 3, 2019 and that no funds were deposited in the account
at that time or thereafter.
The court denied the motion. Farooq appeals.
DISCUSSION
The garnishment process is governed by statute. Chapter 6.27 RCW;
Bartel v. Zucktriegel, 112 Wn. App. 55, 64, 47 P.3d 581 (2002). The garnishment
statute’s purpose is to enforce a debtor’s obligations. See RCW 6.27.005.
Garnishment involves three parties: a judgment creditor, a judgment debtor, and a
garnishee, which holds property belonging to the debtor. RCW 6.27.080(3) (writs
against financial institutions); Hinote’s Home Furnishings, Inc. v. Olney &
Pederson, Inc., 40 Wn. App. 879, 886-87, 700 P.2d 1208 (1985). Once a judgment
creditor obtains a writ of garnishment, the garnishee must answer the writ. RCW
6.27.020, .190. The garnishee’s answer must provide information about the funds
or property of the debtor in its control. RCW 6.27.190. The judgment debtor or
judgment creditor may challenge the garnishee’s answer. RCW 6.27.210, .220.
3 Although titled a “Motion for Revision,” Farooq’s motion did not seek
revision of a superior court commissioner’s decision under RCW 2.24.050 and
appeared to be a motion for reconsideration under CR 59.
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No. 80970-9-I/4
I. Funds Held in Joint Account
As she argued below, Farooq contends that the trial court was required to
quash the writ because all funds in the Wells Fargo joint account were deposited
by Shahzaib and were, therefore, “owned” by him. For purposes of this appeal,
we assume that the question of whether the joint account was subject to
garnishment is a question of law that we review de novo. See Weyerhaeuser Co.
v. Calloway Ross, Inc., 133 Wn. App. 621, 624, 137 P.3d 879 (2006) (reviewing
de novo the question of whether liability insurer was required to honor writ of
garnishment).
Farooq relies on RCW 30A.22.090(2), a provision of the Financial Institution
Individual Account Deposit Act, which provides that funds deposited in a joint
account, “belong to the depositors in proportion to the net funds owned by each
depositor on deposit in the account.”
The statute “creates a rebuttable presumption that funds in a joint
account with right of survivorship are owned by the depositors in
proportion to the amount deposited by each.” Morse v. Williams, 48
Wn. App. 734, 741, 740 P.2d 884 (1987). In other words, the mere
fact funds are deposited into a joint account does not result in a
present transfer of ownership even though the nondepositing party
may have full rights to withdraw the funds.
Fireman’s Fund Ins. Co., v. Nw. Paving and Const. Co., Inc., 77 Wn. App. 474,
476, 891 P.2d 747 (1985). Because “a creditor has no greater rights to a fund than
his debtor,” garnishment of a joint bank account reaches only those funds owned
by the debtor. Yakima Adjustment Serv., Inc. v. Durand, 28 Wn. App. 180, 184,
622 P.2d 408 (1981). The burden of proving the ownership of funds rests with the
joint depositors. Id. at 184-85.
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Washington law supports Farooq’s argument that a creditor can garnish
only property that is owned by the debtor. But, Farooq bore the burden to prove
that she did not own or deposit any funds in the joint account.
In support of her motion to set aside the writ, Farooq relied solely on her
own self-serving statements and those of Shahzaib. Farooq provided no
information about the joint account and simply claimed she would have to assume
“considerable debt” to repay Shahzaib. Shahzaib asserted that all the funds in the
account were his, and beyond explaining that Farooq was a co-owner for
emergency purposes, similarly provided no details about the account. Farooq
submitted no documents to substantiate her claims. The trial court did not err in
concluding that the unsupported assertions Farooq relied upon did not satisfy her
burden of proof.
Farooq submitted additional evidence in support of her motion for
reconsideration of the court’s ruling. We review orders on motions for
reconsideration for an abuse of discretion. Terhune v. N. Cascade Tr. Servs., Inc.,
9 Wn. App. 2d 708, 727, 446 P.3d 683 (2019), review denied, 195 Wn.2d 1004,
458 P.3d 782 (2020). The superior court abuses its discretion when its decision is
“manifestly unreasonable, based on untenable grounds, or unsupported by the
record.” Id. The court’s discretion extends to its decision whether to consider new
evidence on reconsideration. Martini v. Post, 178 Wn. App. 153, 162, 313 P.3d
473 (2013) (“The decision to consider new or additional evidence presented with
a motion for reconsideration is squarely within the trial court’s discretion.”).
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Farooq relied on new evidence submitted on reconsideration to argue that
(1) she became a co-owner of Shahzaib’s account on July 13, 2019, and (2) apart
from nominal interest, no funds were deposited into that account when she became
a co-owner or thereafter. But, the documents purporting to establish that Farooq’s
ownership began in July 2019 were application documents, not contracts of
deposit with the bank. The documents were not signed by an agent of the bank
and there is no evidence to show that the bank added Farooq as an account holder
on the date indicated on the document. The evidence does not conclusively
establish when Farooq’s co-ownership began. And, although Farooq submitted
bank statements showing that Shahzaib regularly transferred funds into the joint
savings account from his sole checking account, those transfers do not account
for the entire balance.
It was within the court’s discretion to decline to consider Farooq’s new
evidence on reconsideration. And, even if the court considered that evidence,
there was a tenable basis to conclude that Farooq failed to prove that she did not
own any portion of the funds held in the joint account.
II. Compliance with Garnishment Procedures
Farooq also claims that Khan failed to notify her of the writ of garnishment
within the timeframe required by RCW 6.27.130 and did not provide the mandatory
form set forth in RCW 6.27.140.
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RCW 6.27.130(1) outlines the timing and content of notice that the judgment
creditor must provide to the judgment debtor:
(1) When a writ is issued under a judgment, on or before the date of
service of the writ on the garnishee, the judgment creditor shall mail or
cause to be mailed to the judgment debtor, by certified mail, addressed to
the last known post office address of the judgment debtor, (a) a copy of the
writ and a copy of the judgment creditor’s affidavit submitted in application
for the writ, and (b) if the judgment debtor is an individual, the notice and
claim form prescribed in RCW 6.27.140. In the alternative, on or before the
day of the service of the writ on the garnishee or within two days thereafter,
the stated documents shall be served on the judgment debtor in the same
manner as is required for personal service of summons upon a party to an
action.
(Emphasis added.) The statute requires that if the judgment creditor serves the
judgment debtor by mail, the person who mails the required documents must file
an affidavit of service. RCW 6.27.130(3).
The statute also addresses the consequences of a judgment creditor’s
failure to comply with procedural requirements:
(2) The requirements of this section shall not be jurisdictional, but (a)
no disbursement order or judgment against the garnishee defendant shall
be entered unless there is on file the return or affidavit of service or mailing
required by subsection (3) of this section, and (b) if the copies of the writ
and judgment or affidavit, and the notice and claim form if the defendant is
an individual, are not mailed or served as herein provided, or if any
irregularity appears with respect to the mailing or service, the court, in its
discretion, on motion of the judgment debtor promptly made and supported
by affidavit showing that the judgment debtor has suffered substantial injury
from the plaintiff’s failure to mail or otherwise to serve such copies, may set
aside the garnishment and award to the judgment debtor an amount equal
to the damages suffered because of such failure.
RCW 6.27.130(2) (emphasis added).
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While Farooq’s motion alleged a failure to comply with RCW 6.27.130 and
.140, her declaration did not mention the notice and explanation of rights form or
describe any of the documents Khan mailed to her. The certification of mailing
Khan filed in superior court indicates that he mailed several documents, including
the prescribed notice and explanation of rights form set forth in RCW 6.27.140.
Insofar as Farooq alleges a due process violation based on the failure to provide
the required notice and explanation of rights form, her claim fails chiefly because
the evidence in the record does not establish a failure to provide the document.4
While Farooq maintains that Khan did not mail any documents to her until
August 2, 2019, the evidence she submitted reveals a mailing date-stamp of July
31, 2019. Khan contends that July 31 is also the date he served the writ on the
garnishee. Yet, the documents he cites show only that the bank’s agent signed its
answer to the writ on that date. And, the record indicates that Wells Fargo informed
Shahzaib and Farooq that Khan served the writ of garnishment on the bank two
days earlier, on July 29.
Therefore, the evidence in the record indicates that Khan did not mail the
required documents to Farooq “on or before” the date he served the writ on the
bank, as required by RCW 6.27.130(1). Nevertheless, this timing requirement is
4 To the extent that Farooq alleges that garnishment of the joint account
violated Shahzaib’s due process rights, he is not a party to this proceeding. And,
if he were, Farooq would not be authorized to represent his legal interests. Farooq
may act as her own attorney, but the right of self-representation applies “only if the
layperson is acting solely on his own behalf” with respect to his own legal rights
and obligations. Wash. State Bar Ass’n v. Great W. Union Fed. Sav. & Loan Ass’n,
91 Wn.2d 48, 57, 586 P.2d 870 (1978).
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not “jurisdictional.” RCW 6.27.130(2). Khan’s noncompliance provided only a
discretionary basis for the court to set aside the writ of garnishment upon a showing
of “substantial injury.” RCW 6.27.130(2). Farooq alleged no substantial injury
related to the timing of service. She consistently claimed that the garnishment
caused financial hardship because she was obligated to repay Shahzaib. Farooq
argues on appeal that had Khan complied with the statute, she could have
asserted a claim of exemption. See RCW 6.27.150 (exemption of earnings). This
argument, however, directly contradicts her position that all funds in the account
belonged to Shahzaib.
It does not appear that Farooq was prejudiced, let alone substantially
injured, by the two day delay. She could have filed her motion challenging the writ
on August 15, within the time period for controverting the bank’s answer to the writ,
had she chosen to do so. In light of Farooq’s failure to identify a substantial injury,
the court acted within its discretion, under the express terms of the statute, in
declining to quash the writ based on lack of compliance with the statute.5
Finally, Farooq requests attorney fees on appeal. She cites RCW 6.27.230,
which provides for an award of attorney fees to a prevailing party where the answer
to the writ is controverted. Even assuming that the statute applies when the
answer to the writ was uncontroverted, Farooq is not the prevailing party and
establishes no basis for such an award. See In re Marriage of Brown, 159 Wn.
5Farooq makes vague and broad allegations of judicial misconduct. Absent
any evidence in the record of bias or impropriety, her claims are unfounded.
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App. 931, 938-39, 247 P.3d 466 (2011) (pro se litigant is generally not entitled to
attorney fees). We deny the request.
We affirm.
WE CONCUR:
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