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Civil Judgment - F.A.Q.s
The Defendant failed to answer. What is the procedure for receiving a judgment issued in my favor?(MAG 10)
The time period to file an answer is 30 days. Thereafter the defendant has 15 additional days to open default by filing an answer and paying the court costs to the clerk of court.
If the defendant fails to file an answer, or pay court costs when filing a late answer, the case is said to "be in default." When that occurs, the court can enter a judgment in the case in favor of the plaintiff.
The Court will review the file and determine if the judgment can be entered automatically, without further evidence or hearing, or whether the court is required to schedule the matter for a default judgment hearing to determine the amount of damages to be awarded, if any.
Damages take two forms, liquidated or unliquidated. A judgment can be issued immediately in a properly proved "liquidated damages." The court is required to conduct a default judgment hearing when the damages are "unliquidated" or when a liquidated damages case has not been properly submitted. We will explain, further.
Generally, "liquidated" or fixed damages such as the amount of money owed on an invoice, credit card account, or contract do not require a default judgment hearing IF the plaintiff attached ALL the necessary documents to prove plaintiff(s) case, such as contracts, statements, invoices, for the exact amount claimed. OCGA 9-11-55 (a): Damages are liquidated when they are an amount certain and fixed, either by the act and agreement of the parties, or by operation of law; a sum which cannot be changed by the proof; it is so much or nothing; and that the term does not necessarily refer to a writing.
When damages are liquidated, a judgment "can" be entered immediately IF the Plaintiff attached, at the time of filing, ALL the necessary documents to prove plaintiff(s) case, such as contracts, statements, invoices, for the exact amount claimed. A mere statement by the plaintiff that a certain amount is owed, by itself, is insufficient to avoid a default judgment trial. Plaintiff(s) seeking to avoid default judgment trials need only to attach ALL the legally required documents to prove their case and serve these documents upon the defendant(s).
"Unliquidated damages" are damages which are uncertain, or which require proof in a courtroom. These types of cases must always be set for a default judgment hearing where the plaintiff has to prove to a preponderance of the evidence the amount owed. Examples of "unliquidated damages" would be an automobile collision or defective workmanship cases.
Recapping - When a Default Judgment Hearing is required:
The Court is required to conduct trials in all cases where:
- The nature of the damages claimed require a trial, such as an automobile collision, defective construction claims and similar cases; or,
- the amount of money sought was not properly set forth in the legal manner required to prove "liquidated damages."
See "T.A.I. COMPUTER, INC. vs. CLN ENTERPRISES, INC.", 237 Ga. App. 646, 516 S.E.2d 340. The plaintiff shall be required to introduce evidence and establish the amount of (monetary) damages with the right of the defendant to introduce evidence as to money owed. The fact of the default alone does not convert the damages into a liquidated claim
The failure of the Plaintiff(s) to attach, at the time of filing, ALL the necessary documents to prove plaintiff(s) case, such as contracts, statements, invoices, for the exact amount claimed, requires the court to conduct a default judgment trial. A statement by the plaintiff(s) that a certain amount is owed, by itself, is insufficient to avoid a default judgment trial. Plaintiff(s) seeking to avoid default judgment trials need only to attach ALL the legally required documents to prove their case and serve these documents upon the defendant(s).
The judicial assistant assigned to preparing this calendar, and all matters connected with default judgment hearings is: Ms. Eva Gibbs, Judicial Assistant, 770-822-8082
What is the difference between a dismissal with prejudice and without prejudice?(MAG 25)
A Dismissal with Prejudice means that the claim may never be asserted against other party again. A Dismissal without Prejudice means that the claim may be reasserted against the other party in the future.
How do I get my judgment paid?(MAG 10)
A judgment is a finding by the Court that one party has a legal obligation to pay the other party a specified amount of money. It may not be redeemed with the Clerk of Court for money nor is it a Court order to pay that money by a certain date. However, the judgment does give you certain rights to try to collect that money from the other side using the assistance of the courts.
What is the basic outline of post-judgment collection procedures?(MAG 25)
- Writ of Fi Fa:
A Writ of Fi Fa is a document that is issued by our clerk's office for the purpose of recording a lien on the judgment debtor's property. It is also the legal instrument by which the sheriff of a county may seize the assets of a judgment debtor. A Writ of Fi Fa may be issued on a default judgment case immediately. If the case was contested, then a Writ of Fi Fa may not be issued until 10 days after the date of judgment. The cost for a Writ of Fi Fa can be found at the Magistrate Fee Page. A Writ of Fi Fa may also be used to perfect a lien upon any motor vehicles that the judgment debtor owns. There is a special process to go through in perfecting that judgment lien. Appropriate forms are available to you through the Georgia Department of Revenue, Division of Motor Vehicles. You must send a self addressed envelope, a check for $1.00 for each vehicle and a copy of the Fi Fa to: Dept. of Revenue, Motor Vehicle Div., Trinity-Washington Bldg., Atlanta, Ga., 30334.
A Writ of Fi Fa is recorded by our court for you upon the General Execution Docket, which is maintained by the Clerk of Superior Court. If you know of any other real property or seizable assets the judgment debtor owns in other counties, you should apply to the clerks of such counties to have Writ of Fi Fa recorded upon the General Execution Dockets of those counties, as well. When the judgment is paid in full, you as the judgment creditor have the duty to see that the Writ of Fi Fa is cancelled on the appropriate General Execution Docket(s). There is an additional fee for this service and that matter is handled through the Clerk of Superior Court in the respective counties wherein the Writ of Fi Fa is filed.B.
A garnishment is a separate legal action that is filed against the garnishee. The garnishee is a person or business entity that either owes funds to the judgment debtor, or is holding funds on behalf of the judgment debtor. A garnishment could be used against a bank, credit union, employer, general contractor, etc. A garnishment is filed in the county where the garnishee is located. Cost for filing and a Sheriff's service of 2nd or subsequent summons can be found on the Magistrate Fee Page
- CONTINUING GARNISHMENT
A continuing garnishment is used when the judgment debtor is a wage earner. It last for a period of 180 days and the appropriate sums will be deducted from the judgment debtor's wages on a 30-day recurring basis until the entire judgment amount is collected, or until the expiration of 180 days from the date of service, whichever event shall first occur. A continuing garnishment is filed in the county where the garnishee is located. Cost for filing can be found on the Magistrate Fee Page.
- POST-JUDGMENT INTERROGATORIES
The purpose of the Post-Judgment Interrogatories is to ascertain what the assets, if any, the judgment debtor has to satisfy this judgment debt. it can be as much as a five step process. Those steps are as follows:
- Plaintiff files his affidavit and the Interrogatories. They are available in the Clerk's Office of the Magistrate Court. The Clerk's office will serve the judgment debtor by certified mail with return receipt requested. If it is a judgment from any other court, the interrogatories are assigned a new case number which inccure a filing cost. Service upon the judgment debtor would be by the sheriff. The cost if it is a Gwinnett Magistrate Court judgment and the new filing cost can be found at Magistrate Fee Page.
- If the Interrogatories are not answered within 30 days, then the judgment creditor must file an Affidavit and Motion to Require Answers to the Interrogatories and the appropriate notice. This is served upon the judgment debtor by certified mail, return receipt requested.
- If the judgment debtor fails to appear at the hearing, the court may, in appropriate circumstances, issue an Order requiring the judgment debtor to answer the Interrogatories within 10 days. This is served upon the judgment debtor by certified mail, return receipt requested.
- If there is no response to the Court Order requiring answers to the Interrogatories, then the judgment creditor must file an Affidavit and Motion to Invoke Sanction of Contempt for Defendant's Failure to Answer Interrogatories, plus the appropriate notice. This must be personally served upon the Defendant by the sheriff. Also, a copy of the previous order is served upon the judgment debtor, as well.
- If the Defendant fails to appear at the hearing, or in the event he does appear and does not have a bona fide reason for not answering the Interrogatories, then the Court may enter an Order for Incarceration. Judgment debtor is then arrested by the sheriff and held in the Gwinnett County Jail until the Interrogatories are answered and approved by the Magistrate.Please note that this is only an overview of the various procedures available to you. You may wish to consult legal counsel if you have difficulties in collecting the judgment lawfully due you. Our office can assist you in filling out the forms hereinabove set forth.
My judgment has been paid, I am the judgment creditor? What do I need to do?(MAG 10)
What is a levy(MAG 14)
A levy is the actual seizure of the property by the sheriff, marshal or other authorized officer. Such a seizure of property may be actual, where the levying officer physically takes the property into his possession; or constructive, where it is impractical for the levying officer to physically take the property; or by recording, where the levy is made upon real property. As with other methods of enforcement of judgment, a levy may not be conducted for a period of ten days following the entry of judgment, except in the case of a default judgment.
In most cases, the levying officer will go to the given location and advise the debtor of his proposed action in an effort either to obtain payment of the judgment from the debtor or convince him to make satisfactory arrangements with the plaintiff or plaintiff's attorney. If neither of the objectives can be accomplished, the officer will determine whether the debtor appears to have possession of and title to property that can be used towards satisfying the judgment. If property cannot be located, the officer will make an entry of "nulla bona" on the face of the Fi Fa and return it to the plaintiff or plaintiff's attorney. If property can be located, the officer will usually seize it and cause it to be moved to a storage facility until the requisite notice can be given for the next scheduled judicial sale.
What property is subject to a levy?(MAG 14)
Unless specified by statute, all real and personal property of the defendant is subject to levy and sale. This would include intangible personal property such as cash in the defendant's possession.
What are the steps for conducting a levy and sale?(MAG 14)
When proceeding with a levy at the request of the plaintiff, the officer will generally give some notice to the defendant unless the plaintiff requests otherwise. Once the officer has made the levy and seized and stored the property, it must then be advertised for public sale. This advertisement must be published weekly for four weeks preceding the sale. All sales are made on the first Tuesday in each month with the exception of legal holidays. At the sale, the purchaser must pay by cash or cashier's check and will take title at his/her own risk. If the title is found to be defective or there is no title, the purchaser cannot withdraw his bid. However, a sale regularly made by this judicial process will convey title as effectively as if the sale were made by the actual defendant.
Can I have the sheriff levy on land owned by the judgment debtor?(MAG 14)
If the real property has been conveyed as security for a debt, the sheriff cannot levy that property.
If the defendant owns the real property free and clear, the levy on real property is very much like the levy on personal property, with a demand being made by the officer, an advertisement being published and a public sale being conducted.
What is the procedure for having the Sheriff levy upon the property of the judgment debtor?(MAG 14)
The Gwinnett County Sheriff's Department can assist you with collection once you have obtained a Writ of Fi Fa. The fee for this assistance can be found on the Magistrate Fee Page.
You should bring your ORIGINAL Fi Fa along with the fee to the Sheriff's Department inside the Gwinnett Judicial and Administration Center at 75 Langley Drive, Lawrenceville GA 30046. Upon receiving the original Fi Fa, a deputy will be dispatched to the address to make a "money demand" upon the defendant, giving the defendant 10 days to pay the Fi Fa in full to the Sheriff's Department. The Sheriff's Department will not accept partial payments. Alternatively, the defendant can pay you, the plaintiff, directly. You have the option of accepting partial payments.
If the defendant fails to satisfy the judgment and make the payments, you may request that the Sheriff's Department levy the defendant's property.
If you request a levy, you as plaintiff take on some responsibilities. First, you must locate and list any personal property of the defendant that is not subject to any prior outstanding lien. You also must be prepared to designate in writing the property you want the Sheriff's Department to levy. It is important not to over-levy the defendant's property because if you do you run the risk of being subject to litigation.
In order for the Sheriff's Department to levy a motor vehicle, you must provide proof that the motor vehicle is not subject to any liens.
- To do this, you should send a self addressed envelope, a check for $1.00, and a copy of your Fi Fa to: Georgia Department of Motor Vehicle Safety, Motor Vehicle Services, PO Box 740381 Atlanta, GA 30374.
- Alternatively, walk in service is available at the Georgia Department of Motor Vehicle Safety, Motor Vehicle Services at 1200 Tradeport Blvd., Hapeville, GA 30354 from 8:30 AM to 3:30 PM Monday-Friday.
Once you have identified the property you wish to have levied, the Sheriff will hold a sheriff's sale. These take place on the first Tuesday of every month, excluding holidays. You, as the Plaintiff, are required to pay for:
- Wrecker and storage (if the levy is on a vehicle)
- Advertisement of the sale
- Levy fee
- Rental of storage space and transport of items (if the levy is on personal property)
After the sale is complete you will be given any proceeds from the sale. It is important to keep in mind that sheriff's sales are frequently not well attended and there is a possibility that the item up for bid will receive less than market value.
FAQ for Perfection or Levy upon Automobiles(MAG 14-32)