"VI. The trial court erred in applying Wenneker v. Physicians Multispecialty [ Group, Inc.], 814 S.W.2d 294 (Missouri Sup.Ct. 199[1]). "VII.
Id. (citing Bunker v. Hibler, 49 Mo.App. 536, 545-46 (1892)). Critically, “[t]he garnishor may reach the indebtedness which the garnishee has a present obligation to pay to the judgment debtor at the time of service, and nothing beyond this.” Murray v. Murray, 176 S.W.3d 713, 717 (Mo.Ct.App. 2005) (citing Wenneker v. Physicians Multispecialty Group, Inc., 814 S.W.2d 294, 296 (Mo. banc 1991)).
” Murray v. Murray, 176 S.W.3d 713, 717 (Mo.Ct.App. 2005) (citing Wenneker v. Physicians Multispecialty Group, Inc., 814 S.W.2d 294, 296 (Mo. banc 1991)). Even if there is a potential bad faith claim against LM, such claim has not been adjudicated and Defendant LM has no “present obligation” to pay any speculative future indebtedness that may arise from the adjudication of such claim to Defendant Stiles “at the time of service.”
Mo. Rev. Stat. § 525.040; Mo. S. Ct. R. 90.01(d), 90.04. Put differently, garnishment "freezes the mutual debts and credits of the garnishee and the judgment debtor at a point in time." Wenneker v. Phys. Multispecialty Grp., Inc., 814 S.W.2d 294, 296 (Mo. 1991) (quoting Firebaugh v. Stone, 36 Mo. 111, 115 (1865)). Proceedings in aid of execution of a judgment "must accord with the procedure of the state where the court is located."
Garnishment "freezes the mutual debts and credits of the garnishee and the judgment debtor at a point in time." Wenneker v. Phys. Multispecialty Grp., Inc., 814 S.W.2d 294, 296 (Mo. 1991). Garnishable property includes all money, rights, and credits belonging to the judgment debtor that the garnishee possesses or controls between service of the writ of garnishment and the garnishee's answer.
However, if the mortgagee thereafter perfected its assignment by taking the identified steps, the mortgagee would have the first lien to rents generated after the date on which its assignment was so activated. The same would be true if the mortgage perfected its assignment of rents after the bankruptcy petition had been filed, by filing a notice as allowed by § 546(b) of the Code.See, e.g., Wenneker v. Physicians Multispecialty Group, Inc. 814 S.W.2d 294 (Mo banc 1991); Vittert Construction and Investment Co. v. Wall Covering Contractors, Inc., 473 S.W.2d 799 (Mo.Ct.App. 1971). Section 546(b) of the Code reads as follows:
Id. However, to make out a case of implied waiver of a legal right, there must be a clear, unequivocal and decisive manifestation of the party's relinquishment of the right. Foremost Ins. Co. v. Parham, 693 So.2d 409, 425 (Ala. 1997); In re Property Seized from Bobby Gene Sykes, 497 N.W.2d 829, 833 (Iowa 1993); Wenneker v. Physicians Multispecialty Group, Inc., 814 S.W.2d 294, 297 n. 6 (Mo. 1991) (en banc). ¶ 24 In this case, since there is no indication in the record that the hospital expressly waived its right to seek contribution, the physician attempts to establish an implied waiver. He contends the hospital implicitly waived it right to seek contribution when it denied its own negligence in its pleadings, when it gave an equivocal response to a discovery request and when it expressly denied liability in its settlement agreement with plaintiff.
The purpose is to allow a judgment creditor to recover monies to which the judgment debtor is entitled. Wenneker v. Physicians Multispecialty Group, 814 S.W.2d 294, 296 (Mo. banc 1991).Id. (quoting Drake on Attachments, sec. 672).
Missouri law holds that garnishees may set off any matured and liquidated claims they hold against judgment debtors. Wenneker v. Physicians Multispecialty Group, Inc., 814 S.W.2d 294, 296 (Mo. banc 1991). Garnishment is a legal process through which a holder of a judgment may apply sums which others owe the judgment debtors to the satisfaction of the judgment.
A garnishor stands in the debtor's shoes and can recover only that which the garnishee owes the debtor. Wenneker v. Physicians Multispecialty Group, Inc., 814 S.W.2d 294, 296 (Mo. banc 1991). The circuit court focused on whether or not Garney was entitled to set-offs for payments that it had made to Leigh Construction's subcontractors and suppliers, but it overlooked a more salient preliminary issue: whether or not Leigh Construction had a right to payment in light of its failure to satisfy a condition precedent to payment.