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Garnishment - F.A.Q.s
1. What is a garnishment?
A garnishment is a legal procedure by which a creditor can collect what a judgment debtor owes by reaching the debtor’s property when it is in the hands of someone other than the debtor (i.e. debtor’s bank or employer).
2. What kinds of property are subject to garnishment?
All property, money, or effects of the defendant in the possession or control of the garnishee at the time of service of the summons of garnishment upon the garnishee, or coming into the possession or control of the garnishee at any time from the date of service of the summons of garnishment upon the garnishee up to the date of the garnishee's answer, shall be subject to the process of garnishment. In the case of collateral securities in the hands of a creditor, such securities shall not be subject to garnishment so long as there is an amount owed on the debt for which the securities were given as collateral.
The most common garnishment actions are for wages and bank accounts. In wage garnishment actions, the defendant’s employer/garnishee can withhold up to 25% (50% in support garnishments) of the defendant’s "disposable income" (earnings less legally-required deductions). However, the law exempts certain kinds of income from garnishment. You should consult the law or an attorney if you are not sure whether the property at issue is subject to garnishment. Information on what kinds of funds are exempt can be found at http://law.ga.gov/garnishment-exemption.
3. What are the jurisdictional requirements to file a garnishment action in the Gwinnett County Magistrate Court?
To file a garnishment action to collect on a judgment in the Magistrate Court of Gwinnett County: (1) you must have a judgment for an amount less than $15,000.00, including interest and court costs, against either an individual or business entity; and (2) the garnishee or its Registered Agent for Service of Process must be located in Gwinnett County.
4. What kinds of garnishments are there?
There are four different kinds of garnishment actions, and the plaintiff must select the correct Garnishment Affidavit to file depending on the circumstances. Pursuant to O.C.G.A. § 18-4-7(d), failure to file the correct/applicable affidavit and summons shall cause the garnishment to be invalid and the garnishee shall be released of all liability.
The four types of garnishments, generally, are:
- Affidavit of Continuing Garnishment for Wages. These are filed against the defendant’s employer for wages owed by the employer to the defendant. The law allows for only a certain percentage of income to be garnished. Continuing garnishments last for 179 days.
- Affidavit of Garnishment. These are "one shot" garnishments seeking all property, money, or effects of the defendant in the possession or control of the garnishee on the day of service and for the 29 days following service on the garnishee.
- Affidavit of Garnishment on a Financial Institution. These are filed when the garnishee is a bank or other financial institution seeking money or other property in the possession or control of the garnishee on the day of service and for the next five days.
- Affidavit of Continuing Garnishment for Support. These can only be filed if there is a child support arrearage. They cannot be used to collect current support obligations. Garnishments for support remain for so long as the defendant is employed by the garnishee and they expire once the original arrearage (as stated in the affidavit) is satisfied.
5. What does it cost to file a garnishment action in Magistrate Court?
The cost of filing a garnishment action in Magistrate Court is $110.00; this amount includes the required filing fee ($60.00) and the fee for the Sheriff’s service of process on the garnishee ($50.00).
6. What will I need to file to initiate a garnishment proceeding?
After determining the correct Garnishment Affidavit to file (depending on the circumstances), you will need the following forms to file with the Court:
- An original and 2 service copies of the Affidavit of Garnishment;
- An original and 2 service copies of the Summons of Garnishment;
- Three (3) copies of the Notice to Defendant of Right Against Garnishment of Money, Including Wages and Other Property and Defendant's Claim Form; and
- A copy of the judgment must be filed with the Affidavit of Garnishment. In addition, garnishment plaintiffs who are not the judgment plaintiffs must also file a copy of the written assignment of the judgment (the document legally authorizing the garnishment plaintiff to collect the judgment amount).
If the garnishment action is filed by mail, you will also need to provide a self-addressed, stamped envelope.
Failure to include sufficient copies may result in your case being returned. The Court will retain all originals and serve the garnishee with the service copy. You will need to make a copy of all forms to serve on the defendant as required in O.C.G.A. § 18-4-8(b). Please visit our website or speak with a Deputy Clerk to obtain the necessary forms.
7. What are the service (notice) requirements
Service on the Garnishee. The plaintiff must have the garnishee served personally or pursuant to a legally authorized service substitute (usually requiring permission from the Court) with a copy of: (1) the Affidavit of Garnishment; (2) the Summons of Garnishment; and (3) the Notice to Defendant of Right against Garnishment of Money, Including Wages and Other Property and Defendant’s Claim Form. See O.C.G.A. § 18-4-8(a) and § 9-11-4.
Service on the Defendant. Not later than three (3) days after service of the garnishment on the garnishee, the plaintiff must also serve the defendant with: (1) the Affidavit of Garnishment; (2) the Summons of Garnishment; and (3) the Notice to Defendant of Right against Garnishment of Money, Including Wages and Other Property and Defendant’s Claim Form. Service on the defendant may only be made through the following methods:
- By regular mail to the defendant at the defendant’s last known address and by registered or certified or statutory overnight delivery, return receipt requested. See O.C.G.A. § 18-4-8(b)(1)(A).; or
- Personal service by the sheriff or other approved special process service.
If the plaintiff can establish by affidavit that the defendant resides out of this state, has departed this state, cannot, after due diligence, be found within this state, or has concealed his or her place of residence from the plaintiff, the plaintiff may be permitted to serve the defendant by regular mail at the address at which the defendant was served as shown on the return of service in the action resulting in the judgment. A certificate of such mailing shall be filed with the clerk of the court in which the garnishment is pending by the person mailing such notice.
If the plaintiff fails to serve the defendant within this statutory time period, the garnishment is subject to dismissal.
Specifically, O.C.G.A. § 18-4-8, regarding service and required notice, provides:
- The plaintiff shall serve the garnishee, as provided in Code Section 9-11-4, or, when the garnishment is filed in a magistrate court, the plaintiff may serve the garnishee by using the constable of the magistrate court in the manner set forth in Code Section 9-11-4, with a copy of the affidavit of garnishment, summons of garnishment, Notice to Defendant of Right Against Garnishment of Money, Including Wages, and Other Property, and Defendant's Claim Form. The plaintiff shall fill in the style of the case, except for the civil action file number, and the garnishment court information on such notice and claim form. Such notice and claim form are set forth in Code Section 18-4-82.
- Not more than three business days after service of the summons of garnishment on the garnishee, the plaintiff shall cause a copy of the affidavit of garnishment, a copy of the summons of garnishment, a copy of the Notice to Defendant of Right Against Garnishment of Money, Including Wages, and Other Property, and a copy of the Defendant's Claim Form as described in subsection (a) of this Code section, using one of the following methods:
- To be sent to the defendant at the defendant's last known address by:
- Regular mail; and
- Registered or certified mail or statutory overnight delivery, return receipt requested.
- The return receipt indicating receipt by the defendant, the envelope bearing the official notification from the United States Postal Service of the defendant's refusal to accept delivery of such registered or certified mail, the envelope bearing the official notification from a commercial firm of the defendant's refusal to accept such statutory overnight delivery, or an official written notice from the United States Postal Service of the defendant's refusal to accept delivery of such registered or certified mail shall be filed with the clerk of the court in which the garnishment is pending.
- The defendant's refusal to accept or failure to claim such registered or certified mail or statutory overnight delivery addressed to such defendant shall be deemed notice to such defendant;
- To be sent to the defendant at the defendant's last known address by:
- To be delivered personally to the defendant by:
- An individual who is not a party and is not younger than 18 years of age;
- An individual who has been appointed by the court to serve process or is a permanent process server;
- The sheriff of the county where the action is brought or where the defendant is found or by such sheriff's deputy;
- The marshal or sheriff of the court or by such official's deputy;
- The constable of the magistrate court, when the garnishment is filed in a magistrate court, or by the constable's deputy; or
- A certified process server as provided in Code Section 9-11-4.1.
- A certification by the person making the delivery shall be filed with the clerk of the court in which the garnishment is pending; or
- To be delivered personally to the defendant by:
- To be sent to the defendant by regular mail at the address at which the defendant was served as shown on the return of service in the action resulting in the judgment when it shall appear by affidavit to the satisfaction of the clerk of the court that the defendant resides out of this state, has departed this state, cannot, after due diligence, be found within this state, or has concealed his or her place of residence from the plaintiff. A certificate of such mailing shall be filed with the clerk of the court in which the garnishment is pending by the person mailing such notice.
- The methods of notification specified in this subsection shall be cumulative and may be used in any sequence or combination. When it appears that a plaintiff has reasonably, diligently, and in good faith attempted to use one method, another method thereafter may be utilized; for the time during which the attempt was being made, the time limit shall be tolled for the subsequent method.
- No money or other property paid or delivered to the court by the garnishee shall be distributed nor shall any judgment be rendered against the garnishee until:
- Ten days have elapsed from the date of compliance with at least one method of notification provided by this subsection; and
- If a garnishee answer was filed:
- Twenty days have elapsed from the filing of the garnishee's answer without a claim having been filed by any defendant or third party and without a traverse having been filed by the plaintiff; or
- All traverses filed prior to the twenty-first day from the filing of the garnishee's answer have been adjudicated and all claims have been adjudicated.
8. How do I prove service?
No money can be paid out until a Certificate of Service identifying the proper method of service on the garnishee and notice to the defendant, along with all other required documents, is filed with the Court. Plaintiff’s obligation to provide notice of the garnishment to the defendant is governed by O.C.G.A. § 18-4-8. Please read this code section if you are unfamiliar with garnishment law regarding notice to the defendant. Failure to obtain proper and timely service on both the garnishee and the defendant shall result in dismissal of the garnishment action.
A Certificate of Service Form is located under the Magistrate Court Garnishment Forms tab.
9. How can I contest a garnishment filed against me?
A garnishment proceeding is an action between the plaintiff and garnishee; provided, however, that at any time before a judgment is entered or before money or other property subject to garnishment is distributed, the defendant may become a party to the garnishment by filing a claim with the clerk of court and may use the form set forth in O.C.G.A. § 18-4-82.
A defendant's claim must assert the basis upon which he or she claims that his or her money or other property is exempt from garnishment. A defendant may not attack the validity of the underlying judgment in a garnishment action. For example, a defendant may not argue that the judgment upon which the garnishment is based should not have issued or was issued in error. Attacks on the underlying judgment must be made in the appropriate Court (this is usually the Court that issued the judgment or the corresponding appellate Court). In addition, financial hardship is not a legal defense to garnishment. However, there is nothing to prevent the defendant from contacting the plaintiff to try and work out a payment plan or otherwise satisfy the judgment using another method of collection or payment.
The law provides that certain kinds of funds and other property may be exempt from garnishment for a variety of reasons, including, but not limited to, the limitations on garnishment as provided in O.C.G.A. § 18-4-5 and § 18-4-53, exemptions as provided in O.C.G.A. § 18-4-6, the plaintiff not having a judgment against the defendant, the amount claimed due by the plaintiff being erroneous, such money or other property being subject to a claim held by a third party that is superior to the judgment described in the affidavit of garnishment, or other legal or statutory defenses.
Even when earnings are held at a financial institution, all or portions of that money may be exempt from garnishment due to the limitations on garnishment as provided in O.C.G.A. § 18-4-5 and § 18-4-53, exemptions as provided in O.C.G.A. § 18-4-6, or other reasons.
If the defendant files a claim, he or she is required to serve a copy of the claim upon the plaintiff and garnishee. Upon the filing of the defendant's claim, the Court will schedule a hearing to be held not more than ten days from the date the claim is filed. Defendant has the burden of establishing that the exemption claimed applies (usually this means bringing in proof of the origin of the funds and other evidence to establish where the funds came from).
10. Where can I find additional information?
The Clerks and Judges of the Gwinnett County Magistrate Court are prohibited from providing any legal advice on how to file your case or what you should file. However, we are happy to share general information about the garnishment process (each case and circumstance may have legal exceptions and/or exemptions). You can find additional information and forms located at www.gwinnettcourts.com, under the Magistrate Court tab. As garnishment case can be complex and often frustrating for all parties, we also recommend consulting a licensed attorney with any specific questions. For information on exempt funds, please go to http://law.ga.gov/garnishment-exemption.